It’s unclear who said it, but it’s funny because it’s true.
Academic politics are so vicious precisely because the stakes are so small.
In response to the “sudden” interest in the constitution of the Supreme Court, a plethora of reforms were demanded to “fix” the “imbalance” of three Trump justices, one of whom got the gig because then-Senate Majority Leader Mitch McConnell successfully gamed the confirmation process to disgracefully ghost Merrick Garland’s nomination, and the other two because of otherwise ordinary openings by retirement and death.
Biden did what any president would do who prefers not to take a stand. He formed a bipartisan commission to study and report back. And so they did.
By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress.
But the group did not offer specific recommendations. That result was in line with the mandate given to the commission by Mr. Biden, but also underscored the lack of consensus and suggested that the report might do little in the short run to drive any particular ideas for change.
A vote of 34 to 0 suggests consensus, if not agreement. Yet, there was pretty much nothing of the sort.
Brian Fallon, the executive director of Demand Justice, a
liberal[progressive] group that supports expanding the number of justices, portrayed the commission as a waste of time.“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.
Much as Demand Justice is the worst-named group ever, as its mission is to demand a judiciary dedicated to ignoring facts and law and issuing rulings that conform to the progressive orthodoxy, Fallon’s got a point. The commission was a waste of time, if the purpose of the commission was to accomplish anything useful.
To be fair, the report does a good job of explaining the pros and cons of various proposals, the sort of thing that’s usually derided as “bothsideism” because it fairly presents the argument and thus allows a reader to reach conclusions based on accurate information rather than one side’s spin.
But what the commission’s report failed to do is then assess the pros and cons and, in its infinite wisdom, reach a recommendation. Of course there are sound and thoughtful arguments for both sides.
David Levi, a former dean of Duke Law School and a former federal judge, said he was voting for the report as a fair assessment of the issues even though he strongly opposed proposals to change the court’s composition or limit its jurisdiction. He warned that such ideas would curtail the judiciary’s independence, undermining the rule of law, and reflected what autocrats abroad had done to eliminate challenges to their power.
So leave everything alone? Maybe not.
Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections.
“This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”
So pack the Court? Maybe not.
“We were not writing a report for the next four months or even the next four years,” [Walter] Dellinger said.
“We hope that the report’s explication of the issues,” he added, “might be useful a century from now.”
The “stakes” of the Supreme Court are huge, the passions as strong as they will likely ever be and the issue teed up by the three Trump justices as well as it will ever be. And the commission swung and whiffed. Regardless of what the recommendations would be, even if the recommendation would be to make no changes.
When the stakes are low, academics will rip each other’s throats out over the most trivial or arcane issues. Here, the stakes were huge, so instead of leaving blood on the tracks, they issued a unanimous report that was prim, proper and pointless.
“The commission was a waste of time, if the purpose of the commission was to accomplish anything useful.”
The commission did accomplish something very useful. It wasted time. That was its purpose, and it performed splendidly!
That may well be the correct answer.
It would be the superior alternative for the commission to search for the reincarnated souls of John Marshall and St. George Tucker, that they, in like manner of the search for the Dalai Lama, may be re-appointed to the bench
Kurt
I do not believe reincarnation was one of the options considered.