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President Biden Convenes Expert Study of Supreme Court; Noem Fears Knowledge

Resisting the calls of some members of our party to immediately recapture the Supreme Court from the radical theocratic majority topped off by the last guy and expand the Supreme Court to 15 members, President Joe Biden has instead opted to convene a commission to study reforming the Court:

“The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the White House said in a statement. “The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices” [Krishnadev Calamur and Nina Totenberg, “Biden Sets Up Commission to Study Supreme Court Reform,” NPR, 2021.04.09].

The 36 members of the Presidential Commission on the Supreme Court of the United States won’t commit to any specific proposals. The President charges them with compiling historical background and analyzing arguments related to how the highest Court functions. Its mix of conservative and liberal members is drawing a mix of reactions from liberals and conservatives, some of whom are predictably miffed that the panel isn’t packed with enough of its own people. Ian Millhiser of Vox suggests that the mix President Biden picked means the commission won’t achieve anything other than to assure the conservative Court that they can theocratize and de-democratize with wild abandon without fear of Presidential reprisal:

If the justices believe that President Biden may send them six new colleagues if the Court dismantles what remains of the Voting Rights Act, then those justices may be less likely to dismantle the Voting Rights Act.

A healthy fear of a Democratic majority could lead the Supreme Court to become less partisan.

But Biden’s new commission sends the opposite message. With so many prominent members of the Federalist Society praising the commission right out the gate, it’s clear that conservatives do not feel threatened by this commission. And the justices themselves are just as capable of looking at the list of names that Biden picked and seeing that this commission is unlikely to support significant reforms [Ian Millhiser, “Biden’s Supreme Court Reform Commission Won’t Fix Anything,” Vox, 2021.04.10].

Yet full-time Presidential campaigner and occasional Governor Kristi Noem exposes her core political “philosophy“—wait, that’s the wrong word, since etymologically, philo-sophy means love of wisdom—her modus operandi by using her South Dakota Governor’s social media channels to cry about this national issue:

Gov. Kristi Noem, tweet, 2021.04.12.
Gov. Kristi Noem, tweet, 2021.04.12.

Noem Rule #1: Always Be Campaigning. Stoke the radical right wing base every day with some false-but-who-cares and self-indicting exaggeration. President Biden is not changing any rules about the Supreme Court; he’s said more against packing the Court than he has for packing. Republicans are the ones who didn’t get their way in the 2020 election and now are changing voting rules across the country and destroying public trust in long-standing institutions.

Noem Rule #2: Don’t study anything: you might find out things you don’t like. When Noem mock-quotes “studying,” she (a—the cheap shot) probably is recalling her college days and the “degree” she “earned” while “serving” in Congress and (b—the real shot) implies that gathering information and expert analysis of important issues is bad. Perhaps she feels the same about auto maintenance: when she goes in for an oil change, she orders the mechanics not to conduct any further inspection, because she doesn’t want to imply that anything is broken. She must avoid going to the doctor for regular checkups, because she needs to maintain her image and can’t imply that anything is wrong with her cross-fit body.

The President has assembled diverse scholars to study the functions of the highest Court in America. Such study is good for public knowledge and policy debate. By saying the contrary, Kristi Noem shows her lack of interest in informed debate and her focus on cheap non-local political sloganeering.


  1. Richard Schriever 2021-04-13

    The last time the number of justices was set, it was based on reflecting the number of Federal Court Districts, which at that time numbered 9 in 1837. One SCOTUS justice for each district. There are currently 11 districts. A reform of the federal Court System – which INCLUDES the SCOTUS – might entail adding more districts as well as more SCOTUS justices. Why? Case-loads are significantly greater to what they were in the the early 1800’s. It’s simple a matter of business or administrative math if you will. Increasing the size of the courts system would better assure the efficacy and efficiency of the administration of justice at the highest levels. Not a political notion at all – unless a politician wants to disingenuously spin it that a’way.

  2. Donald Pay 2021-04-13

    The Supreme Court, like the US Senate is a broken institution. Both need reform, if not total junkage.

    Regarding the Supreme Court, it needs to have revolving justices. Ten years on the Supreme Court is enough. No more life appointments. There should be at least 21 justices at any one time, and they should be much more reflective of the country. Selection should vary: some should be elected; some appointed by the President; some selected by the lower courts.

  3. ds 2021-04-13

    Democrats seeking to pack the Supreme Court you say? Ahh, well the Republicans already did that when the refused to even consider the Merrick Garland nomination under President Obama and then followed that up when ramrodding the nomination of Brett Kavanaugh and Amy Coney Barrett thru.
    BTW Coney is her maiden name…Did she have to go thru the South Dakota fees, waiting period and other hoops to retain that as her new middle name?

  4. John 2021-04-13

    Motion verses movement?
    Donald is correct in that the 2 most irrelevant US government agencies are the US Senate and US not-so Supreme Court. Both desperately need reform.
    Biden likely “needs” a commission to bring along the Luddites. Yet Andrew Yang has the better solution. Yang proposes 18 year terms for the justices with terms being staggered so each 4-year presidency nominates 2 SCt justices.

    Richard is spot on. The appellate circuit case loads are wildly increased from 1837 and are wildly disproportionate among the circuits. The sprawling 9th Circuit is many times larger in terms of case loads, citizens served, and number of justices. The 9th Circuit should be divided into 2 or 3 or 4 circuits. The there are now 13 appellate courts. The Federal Circuit hears controversies from courts that largely did not exist in 1837. Glance at the map here for a glimpse at how out-of-whack the 1837 appellate court districts are from contemporary US living and life.

    Most times better management and administration is not rocket science, but boils down to the will to improve, the will to change.

  5. leslie 2021-04-13

    Cory, could you add “cartoonist” to your skills bag? Laughed at this visual image:

    recalling her college days and the “degree” she “earned” while “serving” in Congress

    Heh heh :)

  6. Buckobear 2021-04-13

    A “work experience” degree …….. amazing.

  7. jake 2021-04-13

    It really is just common-sense, isn’t it? As America’s population increases, the potential work-load of the court increases proportionately. Nobody, even politicians, should find reason to argue this point.
    9 justices in 1837. @ 17,069,453 pop.
    9 justices in 2021 @ 330,000,000 plus

  8. Mark Anderson 2021-04-13

    I guess kristi doesn’t realize that the majority of the people in America are getting tired of the lying loser party, a minority trying to control the majority into the future. 7 out of the last 8 presidential elections have had the Democrats winning the popular vote, no wonder the gop is cheating to retain power.

  9. Cory Allen Heidelberger Post author | 2021-04-13

    Disappointed that President Biden won’t give him the fight he wanted, Senator Thune, too, is trying to portray the President’s commission as exactly what it is not, calling it a “court-packing commission.” Good grief: next, Thune and Noem will have to resort to calling President Biden “Obama” or “Clinton”, just to keep their people mad about something else rather than paying attention to the actual President and his actual actions.

  10. Wayne 2021-04-14

    I have to ask if folks like Mr. Pay, jake, and Mr. Schriever would be so willing to make the argument for an expanded SCOTUS if it had been proposed 4 years ago. I admit my memory isn’t that great when it comes to this blog, but I don’t remember anyone saying this is a problem that needs inspecting back then.

    I find the argument that the highest court needs to expand purely because of increased population or case load specious.

    For instance:
    * America’s population has grown dramatically (doubled since 1950s), but we still only have one chief executive.
    * Some states’ populations have grown dramatically, yet we don’t carve those states up to be more states. (For reference, four states account for a third of the population, but the average population per state is 2% +/-2% of the nation. There’s a valid argument to break up California, Texas, Florida, and New York because they’re far beyond the standard deviation of the rest of the states’ populations)

    I contend the court would function more inefficiently with a higher number of justices – can you imagine the challenge of managing the Q&A period during a case hearing before the SCOTUS with 21 justices? You would have to allow for more time per case, meaning the SCOTUS would hear fewer cases. What about the logistics of getting majority and minority opinions drafted?

    Heck, even the prospect of creating more districts means that the laws will be more unevenly ruled upon if / until SCOTUS weighs in.

    More is not always better.

    But that doesn’t mean we shouldn’t talk about these things. We just shouldn’t hide our motives behind faulty logic. Right now, this feels like a game of Calvinball.

    Maybe the way to ensure fairness in this process is to pass a law that no changes to the SCOTUS go into effect until after the next presidential election; that way the populous has a voice in who’s going to be appointing and providing advice & consent. Then the team that proposed the changes can see if the populous agrees they should be the ones to oversee the changes.

  11. bearcreekbat 2021-04-14

    Wayne does make a valid point regarding the current argument that changes in population and SCOTUS caseload require more justices. For many people, this argument seems to stem from the percieved unfairness of the Senate in denying Obama’s efforts to appoint Judge Garland, while in the same breath approving Trump’s appointment of Judge Barrett. Obviously, that process stinks of political corruption and reasonably has motivated some efforts to appoint more justices to the SCOTUS in an effort to right this wrong.

    Even so, regardless of political motivation, the argument that increasing the number of justices would improve the functions of the SCOTUS seems a very reasonable argument, especially due to substantially increased caseloads and requests for review of appellate rulings. For example, the argument that more justices would make the SCOTUS more “inefficient” overlooks both current federal law and the experience of the 9th Circuit Court of Appeals, which has 29 active judges. In the most serious cases Circuit Courts of Appeal often hold “en banc” hearings, which are quite similar to SCOTUS oral arguments. In Circuits with fewer judges, such as the 8th Circuit Court of Appeals, all active judges sit on en banc hearings, which also imitates the SCOTUS with its current nine sitting justices. Some Appellate Courts covering many States or large geographical areas, however, have substantially more active judges than the SCOTUS, which theoretically could, as Wayne suggests, make their en banc hearings inefficient and difficult to manage. A current solution appears to have adequately resolved this potential problem.

    Federal law provides that for courts with more than 15 judges, an en banc hearing may consist of “such number of members of its en banc courts as may be prescribed by rule of the court of appeals.” The Ninth Circuit, with 29 judges, uses this procedure, and its en banc court consists of 11 judges.

    The SCOTUS certainly could apply such a rule to all cases it agrees to hear by prescribing a specific number of justices, such as nine, to sit on each appeal. This would take care of the inefficiency problem by giving the SCOTUS enough judges to take and decide more important cases than is possible today with only nine justices. And by rule, the justices assigned to each case could avoid the appearance of political bias by requiring four such justices to come from groups appointed by each political party, with the ninth justice selected by these eight justices.

    Even if the current argument regarding the size of the court is tainted somewhat by recent Republican political shenanigans, the merits of such an argument seems quite valid for practical, non-political reasons.

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