At Volokh Conspiracy, Steven Calabresi has thoughts on the Biden administration and the Supreme Court, beginning:
Democrats are accusing President Trump of undermining judicial independence by not following court judgments in immigration cases. Put aside that, as of yet, it is far from clear that any judicial orders have been violated. Even under the worst assumptions, what Trump is doing to the independence of the federal courts is far less serious than what the Biden-Harris Administration tried to do to the independence of the federal courts.
On April 9, 2021, President Biden created a "Commission" to examine "reforming" the "membership" of the U.S. Supreme Court. This action alone is a more serious threat to judicial independence and to the rule of law than are any of the actions with respect to the courts taken so far by President Trump. Imagine how the Democrats would react if President Trump were faced with a liberal Supreme Court majority and therefore created a Commission to examine "reforming" the "membership" of the Supreme Court. …
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." The Commission even operated under authority of a statute, The Federal Advisory Committee Act (FACA) (a very poorly conceived statute, as an aside), although I don't think one is necessary. The Commission also didn't make any recommendations (though constitutionally I think the President could have asked it to); it only analyzed possible reforms from a legal perspective.
Professor Calabresi continues:
Among the ideas the Biden Commission seriously considered were imposing 18-year term limits on Supreme Court justices by passing a statute. This is an idea which I once favored for policy reasons, but which I concluded decades ago in a law review article could only be done by a constitutional amendment. I have subsequently concluded that 18-year term limits for Supreme Court justices are also a bad idea, as a matter of policy, because every two-term president would get four Supreme Court appointments, which is almost always enough power to change the jurisprudential balance on the Supreme Court.
I agree on both points. I was initially inclined to favor term limits (by constitutional amendment) but the Commission's exploration of the issue persuaded me that the idea is impractical without a wider overhaul of the constitutional system. (The Commission's report has a good discussion of this issue.)
As to another of the Commission's topics — expanding the size of the Court — Professor Calabresi has this analysis:
Under Biden's proposal in July 2024, a new seat on the Supreme Court would be created by statute, and not by a constitutional amendment, for every Supreme Court justice who has served for 18 years or longer at the beginning of a President's first and third year in office. Once a justice was confirmed to that new seat, any justice who had served for 18 years or longer would be barred under Sen. Whitehouse's bill from hearing any case in the appellate jurisdiction of the Supreme Court. Such justices would be unconstitutionally confined to hearing cases only in the original jurisdiction of the Supreme Court or cases in the inferior federal courts, unless they resigned.
…
Apart from the unwisdom and un-Americanism of partisan court-packing, the plan is unconstitutional. Congress's supposed power to term limit or pack the Supreme Court comes from a clause in the Constitution which empowers Congress "To make all Laws which shall be necessary and proper for carrying into execution the judicial Power of the United States." This clause allows Congress to pass the rules of federal procedure. It allows Congress to create new judgeships and to regulate federal court jurisdiction to some degree, just as it allows Congress to create executive offices and cabinet departments and agencies.
But those laws creating judges must be "necessary and proper for carrying into Execution" the judicial power, not "for undermining the judicial power." There are sometimes good grounds for creating new federal judgeships as the caseload of the existing judges gets out of hand, but it is not possible to say with a straight face that the Supreme Court is straining under its caseload, which is roughly a third of where it stood four decades ago. Nor can anyone say with a straight face that Clarence Thomas and John Roberts are suffering from the effects of old age that plague former President Joe Biden.
My initial view had been that Congress has essentially plenary power to decide the size of the Supreme Court. But Professor Calabresi is of course correct that the power comes from the necessary and proper clause — and perhaps then he is right that mere desire to change the outcome of cases or the Court's ideological direction is not sufficient to make a change in size necessary and proper. (Randy Barnett, among others, has also made this argument, including in testimony to the Commission.) I wonder if this view would find more favor now, if President Trump proposed to increase the size of the Court so that he could have additional appointments.
Posted at 6:02 AM