The Supreme Court is struggling with a “legitimacy crisis.” According to the polls, Americans have lost confidence in the branch that requires public confidence to exercise power. Several of the justices see the legitimacy of the court as an existential matter that demands blame-shifting. According to Justice Samuel Alito, the media and liberal law professors are responsible. According to Justice Clarence Thomas, the press is wholly to blame. According to Justice Amy Coney Barrett, the partisan press is culpable. And according to Justice Stephen Breyer, partisan politics itself is to blame. It should surprise nobody, then, that according to the draft report issued by 36-ish members (at least one has resigned) of President Joe Biden’s blue-ribbon commission to evaluate the court, absolutely nobody is to blame.
On Thursday, the commission released 200 pages of “Discussion Materials” that represent a tranche of legal research, committee impressions, and policy placeholders. After six months of gathering facts and evidence, taking testimony, and mulling reform ideas, the commission declares that it is neither offering recommendations about fixing the courts nor proposing a specific path forward. One problem: In so doing, the commission is actually proposing a specific path forward—the one we are already on. The commission seems to frame the status quo as the reasonable choice and all alternatives as dangerous deviations.
Their perspective is hardly a surprise. Like Alito, the commission’s draft starts and ends with the proposition that preserving the court’s public legitimacy is the only goal. By definition, any course of action disrupts that. By definition then, shoring up public confidence requires blinkering oneself to a decadeslong program of capturing the court for conservatives who were unable to capture governing majorities. That story is well-known. Sen. Mitch McConnell boasts about it. Donald Trump never tires of bragging about it. Nobody disputes that this was the conservative legal movement’s strategy or that they succeeded.
But that isn’t the story the commission wants to tell. Instead, the commissioners offered a passive narrative about politics and polarization and mutual mistrust. To be sure, it’s a good, neutral, elevated story rooted in the insistence that everyone is equally at fault. But the consequences of this studied neutrality—this choice to contend that the crisis at hand is one of judicial legitimacy, as opposed to the deliberate subversion of judicial legitimacy and democratic norms—is anything but neutral.
To recap: During the six months that this commission has been preparing its draft report, the current Supreme Court made it harder for minorities to challenge racist voter suppression laws, harder for unions to organize, and harder to learn who is contributing funds to political groups. It has changed the law of religious liberty through the shadow docket. It has also, in case you missed it, allowed approximately 10 percent of American women of childbearing age to lose their constitutional right to abortion in September.
If you survey all this legal wreckage and ask what can be done about it, the commission’s interim report has an answer: nothing. It will take more testimony and write more drafts, but even the modest ideas that were on the table when it set about its work—like imposing term limits on Supreme Court justices—appear, on closer examination, to now be disfavored. The committee’s material is so deeply shot through with its anxiety about further politicizing the court that it opts to leave the court as is. Better to save the institution that may someday be called on to save democracy, than to suggest it is in fact working to subvert democracy already. In order to support this conclusion, the authors opt to tell what can only be described as a fairy tale that ascribes fault to both sides (but maybe a little bit more to Democrats? Let’s be honest? So whiny) in the capture of the Supreme Court over the past five decades.
The report starts from the proposition that politicization and polarization around the court are something that just happened; the blame drifts down upon both parties like an early autumn snow. The section titled “Setting the Stage” thus likens Mitch McConnell’s implied blockade of Biden’s SCOTUS nominees should Republicans take control of the Senate in 2022 with Chuck Schumer’s 2007 demand that a “moderate” be confirmed if Democrats control the Senate. Spot the difference? The commission doesn’t. If Democrats are upset that Brett Kavanaugh was untruthful at his hearings and may have sexually assaulted a woman—well, that anger is counterbalanced by how upset his supporters were about how Democrats handled the hearings. Spot the difference? Once again, the commission doesn’t.
The commissioners disagree about how the court became polarized but agree that it’s not their job to probe why or how. They agree to disagree about causation in order to agree that solutions are largely bad.
The draft discussion materials are set forth in five parts: a history of the reform debate, membership and size of the court, term limits, the court’s role in the constitutional system, and case selection and review—docket, rules and practices. On almost none of these matters is any problem depicted as worthy of reform. The most important section, on court expansion, is also the most craven and misleading. Democrats should get over it and move on, the committee suggests, for the good of the country: “The risks of court expansion are considerable,” it warns, “including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy. Recent polls suggest that a majority of the public does not support court expansion. And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform—at least if it were done in the near term and all at once—would be perceived by many as a partisan maneuver.”
And what about America’s role as a shining beacon on the hill? “The American example in the world matters,” the commission writes. “Some Commissioners believe that there is a real risk that the willingness of Congress to expand the size of the U.S. Supreme Court could further weaken national and international norms against tampering with independent judiciaries.” Unmentioned in this passage: No other country except India has a high court as powerful as the United States’ or allows judges to serve for life. Rather, the vast majority of peer nations strictly limit or disallow judicial review of democratically enacted legislation; and yet most Americans probably would not consider the United Kingdom or France or Israel to be the authoritarian hellscape the commission fears. Ignoring this mountain of evidence from around the world, the commission speculates that if elected representatives impose a constitutional check on nine unelected justices, they will not enhance world democracy but destroy it.
This notion, and so many others, arise from a report that ostensibly offers no conclusions. The committee seems to think that an overwhelming bias toward the status quo does not count as taking sides. And perhaps the Biden administration anticipated and approved of this approach. As Harvard professor Maya Sen pointed out on Thursday, the commission is stacked with people who have benefited from the current system, and who have much to lose by criticizing it too harshly. Perversely, it includes multiple conservatives who publicly oppose court expansion but not a single progressive who publicly supports it. The law professors who’ve stuck their necks out to endorse court reform were pointedly excluded. It appears that, to the president, a history of advocating for court expansion was disqualifying, but a history of mocking transgender people was not.
Even some of the liberal lawyers and scholars on the commission may not be thrilled with the current court, but still have little to gain and much to lose by condemning it as a rogue partisan super-legislature. Several commissioners would not sign off. Sherrilyn Ifill, president of the NAACP Legal Defense Fund, found this pretense too much at the committee’s meeting on Friday:
Harvard Law professor Laurence Tribe, another commissioner, described democracy itself as in a “break the glass moment,” arguing that through the court’s decisions regarding gerrymandering and the Voting Rights Act, the survival of self-government itself is at issue. As he concluded, “For those who believe the course is profoundly misguided, to say the only clearly constitutional path is blocked is essentially to say stop worrying about the court. For this report to send that message, when one believes the opposite, would be a profound mistake.”
Incredibly, the commission is even dubious about statutory term limits for justices, an extremely popular proposal with bipartisan support. Some members, to be sure, support these limits. But others oppose them, fearing they will “generate greater uncertainty and mistrust” while undermining “the court’s legitimacy, or perceptions of its legitimacy.” As Sen noted, this sour language throws cold water on the momentum for term limits. Because ultimately concerns for “legitimacy”—not empirical measurements of it, or scrutiny for where it was lost, but free-floating, abstract institutional feelings-ball—trump placing even modest limits on our philosopher kings.
Unsurprisingly the morning-after coverage of the commission’s draft report tells a familiar story of disgruntled lefty whack jobs who are bummed that they lost fair and square to McConnell and are further bummed that they can’t punch back. Lost entirely in that translation is the story about how the court’s loss of legitimacy might have at least as much to do with the actions of its members in recent years, as well as the actions of those who installed them.
Commissioner Nancy Gertner in her remarks Friday openly blamed the commission for ignoring how we got here in order to then ignore the present peril. She noted that “the draft doesn’t talk about how unique this moment is for our democracy, when one party is apparently seeking to embed its power for years and years to come through voting changes. And where the current Supreme Court, whether intentionally or unintentionally, whether in good faith or not, is enabling that.”