On Friday, President Joe Biden issued an executive order establishing a 36-member commission to study the possibility of Supreme Court reform. Biden devised this approach on the campaign trail to avoid taking a position on court expansion—a move that frustrated staunch advocates of reform but smartly defused the question as an election issue. Oddly, however, the president has not asked the commission that he has now formed to give him any actual recommendations on the extremely pertinent question of how to deal with a judiciary that Republicans have captured through unprecedented partisan obstruction. Instead, he asked his commission to produce a report analyzing the history and legality of proposed Supreme Court reforms, as well as the “principal arguments” for and against these proposals, which he will then use to chart a course forward.
Whatever of 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, the main thing Biden has done is kick the can down the road when Democrats do not have the luxury of time: If they lose either house of Congress in 2022, they may not regain unified control of the government for years. Yet the president has given the commission six months to tell us what we already know: Adding seats to the Supreme Court by legislation is perfectly legal, which means it is a political question rather than a constitutional one. 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.
The first red flag here is the commission’s task: not to produce action items or recommendations, but to study issues that have already been studied to death. Congress repeatedly altered the size of the Supreme Court throughout the 19th century—sometimes for overtly partisan purposes: In the 1860s, for instance, Republican lawmakers added (and subtracted) seats to dilute the influence of Southern Democratic justices. Biden has asked the commission to look beyond expansion to other potential reforms, including “the length of service and turnover of justices” (which means term limits) and “the Court’s case selection, rules, and practices” (which means requiring or prohibiting the court from hearing certain cases). It is unclear whether the commission can add a meaningful gloss to any of these topics, which have already been debated in law reviews and op-ed pages and, increasingly, Congress itself.
Which leads to a second red flag: the commission’s membership. Biden has filled the panel with brilliant legal minds, including co-chairs Bob Bauer (White House Counsel under President Barack Obama) and Cristina M. Rodríguez (Deputy Assistant Attorney General under Obama). A majority of its members are undoubtedly progressive. Yet they are also the upper tier of the legal elite; almost all of them, for instance, either attended or taught at Yale or Harvard. As Congressman Mondaire Jones pointed out in a statement on Friday, “many Americans will rightly be skeptical of a commission composed almost entirely of people protected from the real-life consequences of the Supreme Court’s right-wing extremism.”
Moreover, the commission is conspicuously missing the leading advocates of court expansion on the left. Where are academics like Yale Law School Professor Samuel Moyn, who recently co-authored a memo for Take Back the Court asserting that Congress can add seats to the lower courts through reconciliation? Moyn’s argument marks the kind of creative thinking on this issue that liberals desperately need. Yet the members of Biden’s commission, while undoubtedly talented, have not delved into the nuts of bolts of court reform and emerged with practical solutions. And plenty of people have! Look at Steve Vladeck, who has put forth reforms that would shine light on the Supreme Court’s shadow docket. Or scholars like Stephany Rose Spaulding and Carol Anderson, who support adding justices to SCOTUS. As far as I can tell, not a single member of the commission appears to have stuck their neck out by publicly endorsing real, specific court reform. This is not necessarily a knock against them, but it is a sign that the president avoided academics who are in the trenches of this battle.
The inclusion of several conservatives further indicates that this body will not light a path forward toward genuine reform. Jack Goldsmith, a renowned Harvard Law professor and former assistant attorney general, may provide some good-faith insights. But what about Adam White, a scholar at the American Enterprise Institute who occasionally takes to Twitter to deride transgender people as delusional and refuse to respect their pronouns? (Incidentally, there aren’t any transgender members on the commission, even though no community is facing more vicious attacks in state legislatures, which are passing laws destined to wind up at the Supreme Court.)
And what about Thomas Griffith, a former judge on the U.S. Court of Appeals for the District of Columbia Circuit? Griffith stepped down in 2020 so Donald Trump could replace him with a partisan hack. He authored a preposterous 2014 decision abolishing tax credits for most Americans who purchase insurance through Obamacare’s exchanges, sending the health insurance market into a death spiral. (The Supreme Court rejected his reasoning.) It is hard to see how the inclusion of a very conservative judge who tried to sabotage Obamacare in an act of egregious judicial overreach will provide useful food for thought to this commission.
But maybe that’s the point. Looking at the membership and goals of this commission, it seems obvious that Biden does not really want to pursue court reform. Rather, he appears eager to scrape the issue off his plate by tossing it to (and I say this lovingly) a bunch of eggheads who have spent their careers marinating in the fantasy that the Supreme Court is apolitical. It’s a nice dream, and if I had the option, I wouldn’t want to wake up from it, either. But if you are a pregnant teenager in Texas terrified that SCOTUS will let the government veto your abortion, or a same-sex couple in Indiana scared that SCOTUS will let the state dissolve your marriage, or a transgender child in Arkansas worried that SCOTUS will let lawmakers cut off your medical care, you do not have that luxury. These are the voices this commission needs to hear, but they are not the voices that often reach the ivory tower in which this commission is ensconced.