Joe Biden’s Presidential Commission on the Supreme Court voted unanimously on Tuesday to endorse and release a 288-page report. Court aficionados and law students with time on their hands will no doubt be thrilled by this carefully researched and thoroughly footnoted canvassing of all sides in the debate about the problems now plaguing this nation’s high court.
But for those sensing the urgency of this moment and looking for guidance about how to address Mitch McConnell’s successful court packing efforts, the report does not deliver. Instead it offers Biden an excuse to do nothing.
Just as he has shown little appetite for fixing the filibuster, the “send-it-to-a-commission approach” that the president took back in April when he appointed his blue-ribbon group succeeded in moving court reform to the back burner. Even the report’s release will not bring the court’s problems, much less their solutions, fully into view.
This lackluster result is assured because the commission took no position on any of the most pressing issues. Calls to address the successful right-wing campaign to hijack the court, expansion of its membership, and imposing term limits are discussed. But they are neither recommended nor dismissed.
The hallmark of the report is its scrupulous but vexing “some say/others say” approach to those ideas. The crisis of confidence in the court cannot be abated by a survey of scholarly ideas that stops short of real proposals for change. It is hardly helpful to explore every conceivable viewpoint or dive into every rabbit hole and leave it at that.
As law professor Sanford Levinson observed about the commission report, it is “so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment. Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.”
For students of Washington’s endless “commission game,” the pallid result of the Biden commission’s deliberations was no surprise. Presidential commissions have a long track record of producing impressive reports that gather dust without changing what needs to be changed.
As a 2005 New York Times story about President George W. Bush’s Advisory Panel on Federal Tax Reform put it, “Occasionally, presidents have successfully turned to commissions to steer a bipartisan consensus through treacherous political waters. … But by and large, presidential commissions have not led directly to new policies.”
That all of the commissioners voted for the final report tells a lot about how little bite it has. Something for everybody, very little for anybody. No sense of the urgency of the moment.
The Biden commission was hamstrung from the start in two important respects.
First, it had 34 distinguished members representing almost every competing view of the court and its problems. They ranged from Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund, the nation’s oldest civil rights law organization, to Adam White, a senior fellow at the conservative American Enterprise Institute and co-director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State. And its membership included people with an institutional stake in maintaining the status quo fig leaf covering the court’s crisis of legitimacy.
Biden can’t say he wasn’t warned. Before he appointed the commission, a coalition of progressive groups urged him to appoint only members “who acknowledge the need for structural reform of the courts,” they wrote. “Just as a climate change commission would never include a climate denier or a criminal justice reform commission would never include a skeptic of systemic racism, the prerequisite for each commissioner here must be the recognition that our Supreme Court needs to be reformed.”
Second, the executive order creating the commission sought only “an account of the contemporary commentary and debate about the role and operation of the Supreme Court,” and “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.” The president did not actually ask it to make any recommendations at all.
The commission was compliant. Its report documents what it calls “profound disagreements among Commissioners” about things like whether to change the size of the court, and concluded, “We do not seek to evaluate or judge the weight of any of these arguments.”
This vagueness is far from what the doctor ordered, even if it’s what the president asked for. It is regrettable that commissioners did not practice a little civil disobedience in regard to their charge in service of a vision for real reform.
Without such a vision, the commission’s work will not light a fire under the president and help a country growing cold from an activist and increasingly reactionary court. The court’s decisions have weakened democracy and now threaten to undermine individual autonomy and equality in the name of what one prominent conservative thinker has labeled “political domination and hierarchy.”
The commission’s report is another episode in an ongoing political saga, which always goes like this: Republicans take bold, sometimes even illegitimate action to advance their increasingly authoritarian political and legal agendas. They are mobilized, focused, and determined. They know what they want the court to be and to do, and they have known it for a long time. In response, Democrats endlessly debate, discuss, and dither.
If the commission was unable to do anything else, it should at least have delivered a stinging rebuke and a call to action against the Federalist Society takeover of the court. It is time to own up to the fact that for all of its high-minded talk about following precedents and adhering to the law, the current activist majority seems hellbent on reaching results tailored to its ideology and to pleasing the dark money donors who fund its expensive nomination campaigns.
Biden probably thought it was helpful when, campaigning in October 2020, he expressed his view about proposals then being floated to address those issues this way: “The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want.”
Here’s the problem: It’s already a political football. And a political football game whose momentum is set by one side relentlessly flexing its will and muscle over the other is hardly a fair contest.
Some measure of honesty and maybe even shock therapy are what the present moment requires, as confidence in the court plummets and as the radicalization of the court accelerates. The country is in crisis, and 61 percent of its citizens now say the Supreme Court is motivated by politics, not law. It’s hard to say they aren’t 100 percent correct.
Rhode Island Sen. Sheldon Whitehouse got it right when he wrote in August 2019 that “the Supreme Court is not well. And the people know it.” If only the Biden commission knew it too. Instead, it has done little to help cure the ailment that today threatens both the Supreme Court’s legitimacy and the freedom of all Americans.