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Nancy Solomon: This is The Takeaway. I'm Nancy Solomon from WNYC News sitting in for Tanzina Vega today. Tanzina is back later this week. Good to have you with us. Last week President Biden announced the creation of a bipartisan commission that would study reforming the Supreme Court, including expanding it. Former President Trump's appointment of three justices cemented the ideologically conservative 6 to 3 tilt. His outsized influence on the court wouldn't have been possible without Senator Mitch McConnell's obstruction of Obama Supreme Court nominee Merrick Garland back in 2016.

Mitch McConnell: One of my proudest moments is when I looked at Barack Obama in the eye and I said, "Mr. President, you will not fill the Supreme Court vacancy."

Nancy Solomon: Although supporters have pressed President Biden, he stopped short of voicing his opinion on whether or not he would support adding more justices to the court. Here he is on 60 Minutes last October.

President Biden: I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.

Nancy Solomon: Even if President Biden should decide to pursue court expansion after the Commission's findings, there is no guarantee that he has the support in Congress, even within his own party. We have with us Zoe Tillman, senior reporter with BuzzFeed News. Zoe, great to have you back on The Takeaway.

Zoe Tillman: Thanks for having me on.

Nancy Solomon: We also have Mark Joseph Stern, who writes about courts in the law for Slate. Welcome back, Mark.

Mark Joseph Stern: Thanks so much for having me back on.

Nancy Solomon: Zoe, let's start with you. What exactly will the Commission be investigating?

Zoe Tillman: The Commission will be exploring a number of proposals that have been put forward in recent years to change not only the structure but the operation and function of the Supreme Court. The most high profile of those is court expansion or court-packing, the potential addition of seats to the nine justices who are already there. It's not limited to that, the Commission has a broad mandate to explore all sorts of different reforms, including term limits, a system of rotating justices through the court over the course of X many years, various ethics reforms that watchdog groups would love to see whether it's putting in place a formal code of ethics for the justices, increasing transparency rules that the justices have to abide by. It's not court-packing but that is certainly the most explosive of the list that the commission will be exploring.

Nancy Solomon: Mark, what do you think the chances are that this will lead to actual changes on the Supreme Court?

Mark Joseph Stern: Slim to none. I think it's worth noting that the executive order does not actually task the commission with devising recommendations for the president or for Congress. Instead, it asks the members to devise the principal arguments for and against the various proposals that Zoe mentioned and to provide some history and analysis that the President can use to, I guess, marinate on these issues. That doesn't sound like a recipe for decisive action to me.

Nancy Solomon: Zoe, Biden as a candidate made it clear that he didn't support adding seats to the Supreme Court. What's his motive in creating this commission now?

Zoe Tillman: The fact that the Commission is happening at all, I think, reflects a groundswell of interest in doing something about the court from the left, which sat by for four years and watched with very little agency as the Trump administration filled three seats on the court. Also the confirmation of more than 200 mostly young, mostly conservative federal judges across the country. There was very little that they could do about that as long as Republicans controlled the Senate.

During the campaign, thanks to the efforts of grassroots organizations that saw court-packing or other ethics reform as really the only option here, they got the conversation going among candidates, and you had someone like Pete Buttigieg at an event pretty early in the campaign, there was a planted question from one of these groups about court-packing and he said, "I'm open to it." That really cracked open the floodgates for other candidates to have to respond to this movement from the base to address this.

I think there was a lot of pressure on President Biden to do something with that momentum once he took office. It doesn't commit him as Mark said to doing anything, there have been other executive orders that directed similar commissions or councils to come up with policy recommends and this order does not do that, it doesn't even take that additional step. It's a big step forward in the movement that the President had to do something that he is taking official action, but it also really stopped short of requiring anyone to do anything in the end.

Nancy Solomon: In terms of the left-wing of the party, what else is on their wish list? Is it more than just packing the court?

Zoe Tillman: I think it's is there a way for the left to counterbalance the progress that President Trump and Republicans made over the past four years? Back in 2016, an argument was made to Republicans who might be a bit queasy about Trump as a candidate, ignore everything, just think about the judges, whether it's supreme court justices, lower court judges, these are lifetime appointments, that legacy is something that far outlasts even a two-term president.

I think there's this sense among liberals that they have to do something, and absent a huge number of resignations that open up seats, absent a seat opening up on the Supreme Court. Even if Justice Breyer steps down, that's still a more left-leaning seat. Absent Justice Alito leaving under President Biden, there aren't that many options to undo what republicans did. I think there's the sense that liberals need to think outside the box here.

Nancy Solomon: Let's talk about the makeup of the Commission. It seems like they come from pretty elite backgrounds. Mark, tell us about them.

Mark Joseph Stern: Yes, more than 80% of the members of this commission either graduated from or taught at Harvard, or Yale, which shows you the very elite pedigree here. These are mostly either progressive or centrist scholars and law professors, with a handful of genuine conservatives. I think it's worth noting, this is not just a token conservative here, there are big names on the right like Jack Goldsmith and Adam White, and former Judge Thomas Griffith who stepped down under Trump.

They will be on this commission alongside these progressive academics, who are all going to apparently work together to produce a report that does not, as I said, produce any action items, but has some analysis that the entire commission can sign on to, which suggests to me that there will be a lowest common denominator factor here where Thomas Griffith on the right and Bob Bauer on the left are going to have to come together and figure out what they can write about Supreme Court reform that each of them can live with.

I think it's worth noting that the progressive scholars and law professors on this commission are not really known for their advocacy of court reform. If you think about the scholars who have really stuck their neck out over the last few years to advocate for some judicial reform, whether it's adding seats to the Supreme Court, or expanding the lower judiciary, or modifying the rules and procedures of the courts, people like Steve Vladek, and Leah Lippmann, and Samuel Moyn, you don't see them on this commission. Instead, you see individuals who have really shied away from the battle, from the fight under Trump and under Obama before him, between the left and the right on courts.

It's interesting that Biden doesn't seem to want to ruffle any feathers with the membership here, he doesn't seem to want to give any hints or suggestions that this commission will say anything that could be perceived as radical or even necessarily truly reformist. Instead, these are highly respected, wonderful academics, who are still quite cautious. Usually, stick to the center lane, and in my view, are very unlikely to come out in favor of anything dramatic to the extent that they even state their opinions.

Nancy Solomon: Okay, nobody on the commission who's like a full-on advocate for, say, expanding the court, but it does make sense that we would want there to be both the right and the left, right? The country is divided. This commission isn't going to have much credibility with half the country if there aren't folks from the right. What will that mean in the end? Are we going to see a divided report, or do they need to come to a consensus? What's the expectation about that?

Mark Joseph Stern: It looks like from the executive orders, that the Commission is expected to come to a consensus. There's not an expectation of a majority report and a minority report. Like I said, because there's no action items, the instruction here is just to produce, I don't know, a book report, a white paper that goes over the arguments, that goes over the history and legality here. I think that there's going to be a tendency toward blandness, a tendency toward extreme consensus. Because there is no bomb-throwers on this commission or no one who's even really stuck their neck out at all for real reform, it seems the arguments and analysis are going to tilt in favor of the status quo.

Nancy Solomon: Have we had anything from any of the Supreme court justices themselves about this whole project of restructuring?

Zoe Tillman: We have. Historically sitting justices have not been fans of dramatic reform and surprisingly, and just last week, Justice Breyer gave some public remarks where he pushed back on the concept of court-packing. The justices are as a whole often very lowercase C conservative when it comes to how the court functions. You've seen that in the opposition to putting cameras in the courtroom.

I think to the extent someone wants to come in and dramatically reshape the court. We have seen justices talk about how that's not good, that politicizes the court, there are no sitting justices, there's no representative of the Supreme Court on this commission. but I think from Justice Breyer and going back, we've seen justices make clear that they're not fans of this.

I do think one interesting thing to note is that the judiciary as a whole is very in favor of adding judgeships to the lower courts, which is not something that this executive order engages with, but for years, the judiciary has asked Congress to add judges to the lower courts. It's not been a partisan issue. Although recently I think liberals would love to see the Biden administration get behind that as a way to give Biden more seats to fill, but that's not something that this commission is being asked to talk about.

Nancy Solomon: We're almost out of time, but Zoe, what do you think about the timeline? Is six months the right amount of time to do this? Is there anything lost by waiting six months?

Zoe Tillman: He's giving academics a lot of time to do what they do best, which is study, engage, get into the literature and the history, but it's time-limited but not by a whole lot. I think it gives Biden a lot of time, even after the time he's given the commission to really think about what he wants to do here, but I think no one should expect anything to happen anytime soon.

Nancy Solomon: Zoe Tillman is a senior reporter with Buzzfeed News. Thanks so much, Zoe.

Zoe Tillman: Thanks again.

Nancy Solomon: Mark Joseph Stern writes about the courts and law for Slate. Thanks for your time, Mark.

Mark Joseph Stern: Thanks for having me on.

 

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