I can distill the Democrats’ decades-long failure to control the Supreme Court into a single concept: Republicans use the nation’s highest court to reward their hard-core voting base; Democrats use it to pacify their moderates. The staunch refusal of establishment Democrats to offer anything more than a token defense of their voters through the court is the reason Democrats are always fighting an asymmetrical war over the third branch of government—and always losing.
The latest Democratic Party failure is Joe Biden’s Presidential Commission on the Supreme Court. Last week, in fulfillment of his campaign promise, Biden announced the composition of an 180-day commission to study expanding the court. Biden’s choices confirm the worst fears court reformers had about the president: He doesn’t want a solution; he wants an excuse to do nothing.
Democrats have the factual, moral, and political authority to expand and rebalance the Supreme Court. Factually, the number of justices has been changed many times in the past and doing this is the most unambiguously constitutional avenue for court reform. Morally, Republicans lost the right to object some time between stealing a Supreme Court seat from Barack Obama during an election year and then rushing to replace Ruth Bader Ginsburg (may her memory be a blessing) after an election had already started. And politically, these acts of Republican manipulation have finally alerted Democratic voters of the importance of translating electoral victories into control of the unelected branch of government. There simply hasn’t been a moment more ripe for court reform since the end of the Civil War—which happens to be the last time we changed the number of justices on the court.
The problem is that Biden has never been a leader on the issue. In fact, this commission was born out of the president’s refusal to take a stance on court reform during the campaign. He came up with the commission to kick the court-expansion can down the road, and now that we’ve reached that part of the road, he’s lacing up for another punt.
Instead of creating a commission of high-minded reformers or bare-knuckle politicos, Biden has created the quintessential government committee that is purposefully designed to accomplish nothing. The “Commission on the Supreme Court” isn’t even allowed to make policy recommendations on what to do about the Supreme Court. It is merely supposed to “study” the issue, which is like hiring a chef to draw pictures of food instead of cooking a meal. When Republicans take power, they don’t commission a book report on what they should do with the courts. They show up to Washington prepared to reshape the judiciary from day one. Biden showed up prepared to read a law review article.
Make no mistake, Biden has picked people of the highest intellectual caliber to do the homework he could have completed during the transition. The “liberals” on the 36-member commission are impeccably credentialed, well-respected, and well-known within legal circles. The committee includes Sherrilyn Ifill, head of the NAACP Legal Defense Fund; Caroline Fredrickson, former president of the American Constitutional Society; and Lawrence Tribe, who is probably the best-known constitutional law professor in the country.
The problem is not with these progressives on the commission. The problem is with all the progressives who are not. None of the people who have been out front on the issue of court reform are on the commission. Brian Fallon and Aaron Belkin, two people who founded organizations specifically around the idea of reforming the courts, are not part of this group. Samuel Moyn, the Yale Law professor last seen advocating using budget reconciliation to add seats to the lower courts, was left off. Daniel Epps and Ganesh Sitaraman, the law professors who wrote a court reform plan endorsed by Pete Buttigieg during the campaign, back when Mayor Pete was the only candidate willing to talk about this, were also not included on the commission. And, not for nothing, there are quite a few people outside the legal academy who have a track record of explaining court reform to non-legal audiences. Just saying.
Perhaps even more troubling, instead of balancing some of the center-left people on the commission with more, or any, outspoken advocates of court reform, Biden went the other way and put Federalist Society scholars and judges in there to drag the whole thing to the right. I cannot recall the last time a Republican president bothered even to consult a Democratic voice, never mind a genuinely left voice, on how to proceed with a matter related to the Supreme Court. But Democrats continue to act like they need a hall pass from Republicans before they take any action.
Consider: Biden placed conservative scholar Adam White on the commission; White is one of those conservative think tank creations—half lawman/half Twitter troll—who seems eternally befuddled and offended by trans pronouns. (On Slate, Mark Joseph Stern makes the excellent point that there is no trans representation on Biden’s commission, a shocking omission on a three-dozen-member body, given that trans rights are among the ones most directly under attack by the current conservative court.)
Other conservatives include former judge Thomas Griffith, whom some might remember from the time he almost killed Obamacare, and originalist scholar Keith Whittington, whom I would say bad things about, but then he’d write a whole book about my “canceling” him.
I don’t recall any of these conservatives telling their brethren, “No, we cannot steal a Supreme Court seat, confirm an alleged attempted rapist, and then rush through a controversial ideologue after the election has already started,” so I don’t see why any of them get a seat at the table in Biden’s study group. Their inclusion—again, at the expense of some of the individuals who have been actively fighting these people and their conservative takeover of the courts—is insulting.
It’s also a giant waste of time. Donald Trump appointed 226 fire-breathing conservative judges to the federal bench in just four years; we are 20 months away from a midterm election during which Democrats might lose their tenuous grip on power; yet Biden’s committee on studying whether we should maybe, possibly try to fix the court will spend 180 days dickering with Federalist Society people about what Thomas Jefferson would do.
All of this would be more upsetting if it weren’t so pointless. The sad reality is that the battle for court reform was likely lost last November, when states such as Maine, Iowa, and North Carolina reelected Republican senators who had helped break the court instead of electing Democrats who may have been willing to fix it. It’s hard to imagine Democratic senators like Joe Manchin and Kyrsten Sinema, who don’t seem to give a damn if Republicans bring back full Jim Crow voting discrimination, doing anything to reform or rebalance the courts.
A high-profile commission could have been a way to educate the public about court reform and put political pressure on moderate senators who would rather leave Black voters, women, and the LGBTQ community to fend for themselves against a reactionary conservative judiciary. A task force of advocates, each with independent constituencies and networks they could access to spread the gospel of court reform, might have been a useful thing. But it’s clear from this commission that Biden is not willing to spend a whole lot of political capital trying actually to secure the rights of the people who voted for him.
At this rate, Democrats will probably still be “studying” how to fix the Supreme Court in 2025, when a Republican president joins forces with Mitch McConnell to appoint and confirm a test tube filled with Antonin Scalia DNA to replace Stephen Breyer. Maybe by then Democrats will figure out that fighting for the Supreme Court is the only way to win it.