On Friday, President Joe Biden issued an executive order to set up a 36-person commission to examine the possibility of reforming the Supreme Court. Biden developed this approach during the election campaign to avoid a position to expand the court – a move that frustrated staunch supporters of reform, but cleverly defused the question as an electoral problem. Strangely enough, however, the President has not asked the commission he has formed to give him actual recommendations on the highly relevant issue of how to deal with a judiciary that Republicans have conquered through unprecedented partisan barriers. Instead, he asked his commission to prepare a report analyzing the history and legitimacy of the proposed reforms to the Supreme Court, as well as the “main arguments” for and against these proposals, which he will use to determine further course.
Whatever the merits of this strategy as an intellectual or political exercise, it is not a recipe for real Supreme Court reform. In forming this commission, Biden brought the can to its knees above all else if the Democrats don’t have the luxury of the time: if they lose either of the two Congress Houses in 2022, they may not be able to regain unified control of the government for years. However, the President has given the Commission six months to let us know what we already know: adding seats to the Supreme Court is perfectly legal by law, which means that it is a political rather than a constitutional issue. The Commission is already giving us an indication of where Biden falls on the political issue of judicial reform – in particular, that he is unwilling to do so.
The first red flag here is the Commission’s job: not to draw up any action points or recommendations, but to investigate issues that have already been examined to death. Congress repeatedly resized the Supreme Court throughout the 19th century – sometimes for openly partisan reasons: in the 1860s, for example, Republican lawmakers added (and removed) seats to reduce the influence of South Democratic judges. Biden has asked the commission to go beyond extending it to other potential reforms, including “length of service and turnover of judges” (which means term limits) and “the selection, rules and practices of the Court” (which means that the law required or prohibited) court from hearing certain cases). It is unclear whether the Commission can give any meaningful shine to any of these issues, which have already been debated in legal reviews and opened pages, and increasingly in Congress itself.
The commission conspicuously lacks the leading proponents of court enlargement on the Left.
Which leads to a second red flag: membership of the Commission. Biden filled the panel with brilliant legal minds, including co-chairs Bob Bauer (White House attorney under President Barack Obama) and Cristina M. Rodríguez (Deputy Assistant Attorney General under Obama). The majority of its members are undoubtedly progressive. But they are also the upper tier of the legal elite; Almost all of them attended or taught, for example, Yale or Harvard. As Congressman Mondaire Jones pointed out in a statement Friday, “many Americans will rightly be skeptical of a commission made up almost entirely of people protected from the real consequences of the Supreme Court’s right-wing extremism.”
In addition, the Commission conspicuously lacks the leading supporters of court enlargement on the left. Where are scholars like Professor Samuel Moyn of Yale Law School, who recently co-authored a memo for Take Back the Court alleging that Congress can add seats to the lower courts through reconciliation? Moyn’s argument marks the kind of creative thinking on the subject that liberals desperately need. While the members of the Biden Commission are undoubtedly talented, they have failed to dig into the basics of judicial reform and come up with practical solutions. And many people have! Look at Steve Vladeck, who put forward reforms that would shed light on the Supreme Court’s shadow protocol. Or scientists like Stephany Rose Spaulding and Carol Anderson who support adding judges to SCOTUS. As far as I can tell, not a single member of the Commission seems to have perked up by publicly advocating real, specific judicial reform. This isn’t necessarily a blow to them, but it is a sign that the president was avoiding academics in the trenches of this battle.
The involvement of several Conservatives also suggests that this body will not point the way towards real reform. Jack Goldsmith, a renowned Harvard law professor and former assistant attorney general, can provide some good faith. But what about Adam White, a scholar at the American Enterprise Institute, who occasionally goes on Twitter to ridicule transgender people as delusional and refuse to respect their pronouns? (Incidentally, there are no transgender members on the commission, although no community has been subjected to more vicious attacks in state legislatures that pass laws to go to the Supreme Court.)
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What about Thomas Griffith, a former U.S. Appeals Court judge for the District of Columbia Circuit? Griffith resigned in 2020 so Donald Trump could replace him with a partisan hack. He penned an absurd decision in 2014 to end tax credits for most Americans who buy insurance through Obamacare’s exchanges, and put the health insurance market on a death spiral. (The Supreme Court declined.) It is difficult to see how the inclusion of a very conservative judge who has tried to sabotage Obamacare in an act of egregious legal transgression will give this commission useful food for thought.
But maybe that’s the point. Given the membership and objectives of this commission, it seems obvious that Biden does not really want to continue judicial reform. Rather, he seems anxious to scrape the subject off his plate by tossing it to a group of eggheads (and I say this fondly) who have spent their careers marinating in the fantasy that the Supreme Court is apolitical . It’s a beautiful dream, and if I had the option, I wouldn’t want to wake up from it either. But if you’re a pregnant teen in Texas worried that SCOTUS will veto your abortion, or a same-sex couple in Indiana worried that SCOTUS will let the state dissolve your marriage, or a transgender child in Arkansas Fears SCOTUS Will Allow Legislators to Cut Your Medical Care, You Don’t Have That Luxury. These are the voices that this commission needs to hear, but they are not the voices that often reach the ivory tower that this commission is in.
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