Court Reform is Dead! Long Live Court Reform!
Joe Biden’s Commission on the Supreme Court voted on the final version of its report last week. In five dense chapters, it lists the pros and cons of reforms such as adding justices, limiting their terms, reducing the Court’s power, and improving its inner workings. A couple of minor exceptions aside, the commission hewed to the task the president gave it, which was not to endorse anything but to weigh the “merits and legality” of different options. Many of the Court’s critics believe that such a lack of forward momentum was the goal from the get-go: to stifle reform politics after a lengthy delay and leave things exactly as they are.
But if the commission was intended to be the place where Court reform went to die, its effect in the long term may be the opposite. With calls to change the Court still very much alive, ideas that were once fringe have now moved to the center of Court discourse. And with radical action by the Supreme Court continuing in the coming years—likely starting with the overruling of Roe v. Wade but not stopping there—we may look back on the commission as helping to set reform in motion, rather than stopping it in its tracks.
Biden promised to set up the body days before the 2020 election. At the time, Democrats were furious at Senator Mitch McConnell’s successful stocking of the Court with conservatives, including, most climactically, his replacement of Justice Ruth Bader Ginsburg only a week before the election. This move amplified calls for Biden and other Democrats to pack the Court upon taking office, a reform previously considered beyond the pale. With his respect for precedent and tradition, Biden wished to avoid weighing in on this politically explosive proposal. The commission was his attempt to avoid having to do so.
As soon as it was announced in April, Biden’s commission was panned by progressive commentators. The commission included many conservatives and conspicuously excluded the progressives who had been most vocal in demanding reform. Recognizing that this centrist assortment of ex-judges and law professors was unlikely to call for radical change, Slate’s Mark Joseph Stern wrote that “the commission already gives us some indication where Biden falls on the political question of court reform—specifically, that he’s not willing to do it.”
When drafts of the commission’s report dropped in October, the results amounted to a call to think hard and do nothing. In its complexity and length (the document is more than one-fourth footnotes), the report smells of the lamp. Nor did the commission undertake efforts to communicate and defend its findings in order to dramatize the momentous stakes for its fellow citizens. In a snarky moment, Senator Sheldon Whitehouse of Rhode Island dismissed the results as “faculty-lounge pablum.”
But in the closing weeks of the commission’s work—as the Supreme Court was showing its hand on abortion—the plot took a surprising turn. With most reforms, the report lists promising and problematic features, leaving the overall implication that none is particularly viable. But this also has an unexpected effect: Taking seriously reforms that had once been ridiculed as off the wall.