March 30, 2023

The U.S. Supreme Court reform has not happened

In a preliminary report released on Thursday (10/14), the bipartisan commission set up by President Joe Biden to make recommendations on a reform of the Supreme Court, including the basic plan (or more) to expand the number of court ministers from 9 to 11, is what these types of commissions generally do: anything Not recommended. It only presented the analysis of the proposal.

The 36-member commission, which is said to have been selected from the country’s best judges and academics, examined the pros and cons of the court’s possible expansion, often referred to by opponents as “court packaging” (Court packing)

But compared to the pros and cons, he suffered a “stroke through analysis” – that is, he over-tested the pros and cons and was unable to decide what to recommend to the president, the director of the organization said. Demand Justice, Brian Fallon, The Washington Post and The Hill Newspapers.

Apparently, according to the report, one drawback stands alone: ​​the increase in the number of ministers at this time is because the Liberals are dissatisfied with the dominance of the court conservatives (6 conservative ministers and 3 liberals) will only satisfy the political purpose of the project.

This would create a continuous cycle of court expansions, as traditionally Democrats and Republicans come to power alternately every four or eight years. Thus, over a period of 50 years, the report says, there will be 29 ministers in the court.

In the Commission’s view, its report “threatens the long-term legitimacy of the Court or undermines its role in the legal system of the country.” According to this statement, it is contrary to the argument of the proponents of the expansion of the Court, which should restore the legitimacy of the Supreme Court.

The country’s liberals claim that this legal loss is caused by the “insidious benefits” used by the Republican majority in the Senate to approve the appointment of two of the three ministers appointed by former President Donald Trump to his government.

In early 2016, Republicans refused to review Judge Merrick Carland, who was appointed by former Democrat leader Barack Obama, because this is an election year – November only.

Thus, former President Trump, in early 2017, appointed Minister Neil Corsican. In 2020, the rule that ministers should not be appointed in an election year was “ignored”. A month before the election, Trump named Minister Amy Barrett.

This is the main reason why the Liberal Democrats want to expand the number of Supreme Court justices: to restore the balance between the various ideologies that were allegedly lost under the Trump administration and the “legitimacy” of the judiciary.

The report highlights two key benefits of the court’s expansion. One is that more ministers will give presidents the opportunity to make recommendations that reflect “the rich diversity of the nation,” which will improve public perception of the judiciary.

Another advantage is that the Supreme Court can hear more cases. That would actually be a significant advantage, because at present the court hears only 80 to 100 cases a year. Many cases in which precedents are set are dismissed.

The Commission has an advantage not pointed out in its report, but is repeatedly expressed by supporters of the expansion, and the appointment of two liberal ministers will re-establish a certain balance in college ideology. There will be 6 Conservative ministers and 5 Liberals (as before, 5 Conservatives and 4 Liberals).

Although the Conservatives still have a majority, by a single vote, a Conservative minister decides to vote with the Liberals based on their own legal understanding. This has happened many times. But with three more votes and two Conservatives need to vote with the Liberals, that is unlikely to happen.

The Washington Post pointed to a “success” in the work of the Commission: it helped President Biden’s intention to postpone the debate on “court packaging” for more than a year. It gave Biden time to present other projects that were important to him in Congress – without the “thrill” of reform debates along the way.

The president did not see the idea of ​​expanding the court. During the election campaign, he was urged by the country’s progressive forces to defend the proposal. But, it went in one touch. He promised to create a high-level bilateral commission (which he did at the beginning of his administration) to examine the project and make recommendations.

The newspaper says the commission has done its part: to make the study of the proposal look like a “bag in the sky” (a bag in the sky) – a very pleasing film to watch (though like a hallucination) although it cannot be expected to be true. But it will calm the mood.

18 year period
Another proposal under consideration is to limit the term of office of ministers to 18 years. A minister retires every two years (retirement or lower court, at his discretion). In that case, each president would have the opportunity to appoint two ministers for four years or four for eight years.

And the court will continue to update. Whether a conservative or liberal majority exists depends on the electorate in electing a Republican or Democratic president.

But will it happen? The difficulty is that it will require a constitutional amendment that would require a two-thirds majority in each House of Congress and three-quarters of the votes in the 50 U.S. states. In other words, it will require a lot of Republican votes. Will the Republicans agree to make this constitutional reform? No. They are very satisfied with the current situation.