In the News

Biden’s Supreme Court commission failed to convince Americans to change anything

November 20, 2021

By Kelly Shackelford, President, CEO and Chief Counsel

Shortly after taking office, President Joe Biden created a Presidential Commission on the Supreme Court of the United States. The commission appeared to be political cover for those on the Left hoping they could reshape the U.S. Constitution to secure the Left’s political gains of 2020.

They have, thus far, failed to convince the American people to change anything, let alone remaking the Supreme Court to suit their ideological purposes.

Assembled from a mixture of mostly far-Left policy experts, law school academics, and lawyers, the president tasked the Commission with evaluating the various ways in which a supposedly “broken” federal judiciary could be reformed. After six months of meetings, nothing has changed.

Do the American people want President Joe Biden to remake our judiciary? No, they do not.

According to the Wall Street Journal, polling released in April—just ahead of the commission’s inaugural meeting—revealed that not only did a supermajority of the country oppose packing the U.S. Supreme Court; it considered the president’s commission a political tool of the Democrat Party to satiate the interests of its far-Left base.

That opinion remains unchanged. Americans—by a margin of 65% to 24%—still oppose court-packing, according to polling released just last week. What then-Sen. Joe Biden once called “a bone-head idea,” in reference to FDR’s court-packing scheme, Americans understand is, in fact, “a bone-head idea” that ought to be relegated to ash heap of American history.

Yet, the commission pivoted early on, perhaps knowing that the chances of a do-over on a retread of FDR’s court-packing scheme were slim. So, the commission started to fix upon “term limits” and other constitutionally suspect “court reforms” that would politicize the courts and place the judiciary more under their power.

But even the commission’s own membership is largely unconvinced. One member, Professor Laurence Tribe, even changed his mind after hearing testimony. Tribe is a Harvard Law School professor, one of the most cited legal academics, co-founder of the ultra-liberal American Constitution Society, and would likely have been nominated as chief justice if Al Gore had won instead of President George W. Bush.

At the end of the commission’s meeting in October, Tribe explained that, where he had once leaned in favor of one of term limitations, a deceptively modest court-reform measure, he no longer could. What changed his mind? President Biden’s commission and the American people.

According to the polling, Americans appear evenly divided on the issue of term limitations for judges. Voters generally support limiting the tenure of politicians. Perhaps they remember Newt Gingrich and his “Contract for America” that made term limits a popular political measure in the mid-1990s.

But what works in legislative races does not work so well when applied to federal judges. As Alexander Hamilton explained in Federalist No. 78, the type of judicial independence the Founders had in mind “can certainly not be expected from judges who hold their offices by a temporary commission.”

Article III of the U.S. Constitution’s guarantee that federal judges hold their office “during good behavior.” The Founders meant this to secure judicial independence, removing them from any undue influence stemming from employment prospects after their tenure on the bench ends. Socialist liberals now tell us Hamilton and his friends were wrong.

The debate over term limitations is likely to receive more attention if simply in a lazy attempt at justifying the commission’s work. Laying aside whether term limitations would make judges more independent (it would not), the far left would need to convince the nation to amend our Constitution to implement such a measure.

That is a nonstarter for the average American. A supermajority—66%—of Americans surveyed oppose amending the Constitution to change the Supreme Court’s structure. But that may not matter. After the electoral bloodbath liberals suffered Nov. 2, the prospect of radical changes to our Constitution may have a greater headwind against them.

Despite what the socialist progressives of the Democrat Party would have you believe, the American judicial system crafted by the Founders is still the best option of securing our civil liberties and protecting our freedoms. The American people think so too. The system the Founders envisioned may not be perfect, but it is a far sight better than anything the world has concocted since.

President Biden, himself sagging in the polls, would do well to let the commission’s recommendations expire with its charter. To change our judicial system now would be “a bone-head idea” indeed.

Note: This article was first published on Fox News and is re-published here with permission. The article presents the main points of an op-ed published in Fox News. This work was authored by Kelly Shackelford. The full article can be found on the Fox News website, here.

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