The Presidential Commission on the Supreme Court of the United States released its draft findings late last week, and, in a surprise to absolutely no one, the commission was skeptical of the idea of court expansion—or pretty much any other real reform to the Supreme Court.
This was by design. Biden put together a commission on court reform that managed to include no actual reformers. He put really smart and interesting law professors on the commission, but none with particular expertise in court reform. He put brilliant attorneys on the commission, but many of them argue in front of the Supreme Court for a living and are therefore not in the best position to question the legitimacy of the institution or its justices. He put actual Republicans on the commission, including Federalist Society members and a lawyer who orchestrated the constitutional challenge to the Affordable Care Act. But he tapped nobody who has been on the record in favor of reforming the court—none of the organizers who have built coalitions in support of reform or professors who have written policies or worked with lawmakers outlining ways to fix the court.
The commission was set up to do nothing, and its draft findings accomplish that easy work. Its members found that there are “considerable” near-term risks to expanding the court and worried that such a move would further “politicize” the institution and threaten its legitimacy—as if a court that empowers alleged attempted rapists to take away women’s rights should be viewed as “legitimate” by the people. They also howled about the danger of court expansion in the longer term, warning that we could see a court expanded to as many as 29 justices “over the next 50 years,” without explaining why 29 justices (which is my preferred number for court expansion) would be bad, or engaging with the argument that a 29-member court would have the beneficial effect of depoliticizing the Senate confirmation process.
Of course, “the commission” did not speak with one voice, another deliberate design flaw of the project. The draft report uses a particular turn of phrase, “some commissioners believe,” when it says something particularly fanciful, like arguing that the court’s evisceration of voting rights is not cause for concern. It then follows up with the phrase “other commissioners believe” and offers the counterpoint. That gives every individual commissioner plausible deniability, so all of them can say later, “I didn’t agree with that part,” and makes the entire report sound less like serious policy analysis and more like the summary of an elite cocktail party. It reads like a discussion between Kang and Kodos, two aliens who know nothing about the American political process, as if the commission wanted to suggest “Abortions for some, miniature American flags for others.”
Again, this commission was not designed to produce… anything. It’s not even allowed to make “recommendations.” It’s just supposed to study the issue, which is like commissioning an architect to observe a structure fire instead of empowering the fire department to douse it.
Even with that limited charge, the commission didn’t, in fact, study all issues. Somehow, its members spent six months studying court reform but didn’t have anything to say about ethics. The Supreme Court is the only court in the country that operates without ethics rules. It employs two men who have been credibly accused of sexual misconduct. It tolerates conservative justices who regularly appear at fundraising events for the Federalist Society or engage in other political activities (like hanging out with Mitch McConnell at the Mitch McConnell Center). And yet the Biden commission could not find a word to spare about ethics reform.
The commission was designed to do only one thing: give Joe Biden and Senate Democrats cover for total inaction. I believe Biden does not want to engage on court reform. He was the most hostile to it of any of the Democrats who ran for president. He came up with the idea of the commission during the campaign to get the press to stop asking him about it. Even the process of releasing the information—a “draft” report now followed by a “full” report next month—seems designed to depress public interest in the topic. It gives false hope to progressives that the “real” report will offer something more substantial than this current morass of hedging and history lessons, while ensuring that when the final report drops it will be “old news” that the press quickly disregards.
Of course, even in a world where the commission suddenly embraced court reform (it won’t), it would be almost impossible to enact its recommendations. By the time the full report comes out, we will be less than a year away from the midterm elections. It is not realistic to think that Congress could pass court expansion legislation, then vet, nominate, and confirm multiple new justices to the Supreme Court by the end of 2022. Biden’s strategy of running out the clock on court reform has almost certainly worked.
When McConnell wanted to remake the Supreme Court, he led an unprecedented campaign of obstruction to block a presidential nominee from getting a fair hearing during an election year. Later, he rushed to fill an additional seat on the court after an election had already started. When Biden was pressed on court reform, he sent it off to a commission to die.
Remember this fact when you see five-hour lines to vote. Remember it when you see another mass shooting carried out with a legally purchased assault weapon. Remember it when a teenage rape victim is unable to get medical help to end an unwanted pregnancy. Remember it when you see any image from the state of Texas. Remember that the Presidential Commission on the Supreme Court of the United States was Biden’s answer to all of it.