Mike Ramsey notes the criticism by Steve Calabresi of the Biden Administration’s establishment of a commission to study reforming the Supreme Court. Ramsey, who served on the Commission, pushes back on Calabresi’s argument. He writes:
As a former member of the Commission, I don't see anything improper about it. The President should be able to ask for advice regarding possible changes to the Court, if he thinks the Court is not functioning as it should. That's part of the President's Article II power to "recommend to [Congress'] Consideration such Measures as he may judge necessary and expedient."
While the Commission looked into various issues, the most salient issue was expanding the size of the Supreme Court – what is known as court packing. It is quite possible that the Commission was established actually to kill the movement for court packing – there is a long history of using committees to bury problematic movements – but neither Ramsey nor Calabresi characterize it in that way.
I agree with Ramsey that it was not unconstitutional to establish a Commission to study the issue or to recommend measures. But that does not exhaust the matter. Even if one assumes that court packing is constitutional, it is a horrible idea that violates historical norms and should be prevented by constitutional amendment. See here. If the Commission made it more likely that Court packing would be pursued, then the Commission was problematic.
I should note that it is not entirely clear to me that court packing is constitutional. It might be unconstitutional when done to change the composition of the Supreme Court because of dislike of certain decisions. See here.
Of course, I don’t blame Ramsey for serving on the Commission, since his voice would only be a voice of reason about a bad proposal. But unless the Biden Administration established the Commission to kill the movement, it was bad policy and should be criticized.
Posted at 8:00 AM