The commission kicked the can again — just as it was designed to.
The commission kicked the can again — just as it was designed to.
J oe Biden’s Presidential Commission on the Supreme Court of the United States exists solely for reasons of cynical political strategy. During the heat of the 2020 presidential campaign, Biden promised that if elected, he would study proposals to pack the Supreme Court. He did so as a dodge: endorsing Court-packing would be radical, unpopular, and inconsistent with his own strongly stated prior positions. But foreclosing the issue would depress progressive activists; it would also deprive Biden of a weapon with which to threaten the Court in order to intimidate the justices from standing impartially for the rule of written law. What the commission says or does is therefore far less important than the very fact that it exists.
On Thursday afternoon, the commission released a series of draft reports on Court-packing and related topics. The reports arrive, by design, at the midpoint between the presidential and midterm elections, at a time when progressive anger is mounting over Biden’s stalled legislative agenda. Predictably, given that the reports are the work of a committee of three dozen lawyers, they are lengthy (203 pages, in total), dense, and full of weasel-word caveats, cautions, and references to numerous disagreements among the commissioners. The draft reports are also unsigned, leaving unclear for now which of the 36 members of the commission endorse which parts of which reports.
Looking specifically at the draft report on “Membership and Size of the Court,” it is apparent that even a committee hand-picked by a Democratic administration to keep the door open for Court-packing nonetheless recognizes that such a proposal is too radical and unpopular to embrace openly. Yet while there is considerable ammunition here for opponents of Court-packing, the commission refuses to recommend against it. Its aim is to bury the issue in sludge, keeping options open for future proposals without giving soundbites to Republican candidates in 2022 and 2024. However sincere and diligent some of the commission’s members may be, their selection was designed to produce this sort of outcome.
The Partisan Radicalism of Court-Packing
The United States was the first nation ever to bind its entire government to the rule of written law established by the people. For the first time in human history, no power could be exercised by the national government unless it had been written down in rules passed by the people; no individual liberty could be trampled if the people had passed a rule protecting it. The enforcement of those rules by independent courts was not antidemocratic; it was necessary to make democratic lawmaking a reality, while compelling it to proceed with deliberation and respect for the work of previous majorities and supermajorities.
The Supreme Court occupies a unique role in our judicial system. It alone is established by the Constitution itself. It alone can hear appeals from the decisions of state supreme courts as well as federal courts. It alone, among our courts, is coequal with the president and Congress, neither of whom are similarly armed with life tenure. It alone can make decisions that no other court can overturn. Its ever-increasing power to limit the choices of the elected branches of government make the independent integrity of its deliberations all the more urgent. To that end, the Court’s size has remained stable at nine members ever since 1869, once the justices no longer needed to disperse individually to “ride circuit” over a geographically expanding nation.
One of the best safeguards of our written constitutional liberties is the fact that majorities of the nine-member Court take a very long time to build, reflecting the deliberation of voters across a long series of presidential and Senate elections held during different political moments. Voters understand that every presidential and Senate race can influence the direction of the Court. That is an essential premise of the rules of the democratic game: Every election matters, but no single election season can change our system of government overnight. If Washington politicians changed those rules to retroactively undo the expectations of all those voters simply because one political party decided that some outcomes of the democratic process cannot be tolerated, that would be a direct assault on the entire project of constitutional democracy.
Because of this, there is a long-established norm in our system against Court-packing. That norm was etched into our history books and our collective political memory when Franklin D. Roosevelt, at the peak of his power and popularity in 1937, tried to pack the Court for nakedly political reasons and was rebuffed by his own party and voters. Congress at the time raised alarms about the authoritarian nature of FDR’s actions in the strongest possible terms, and went out of its way to warn future generations against anyone repeating the effort. Until very recently, Court-packing was classified in our political history with the Alien and Sedition Acts, Japanese internment, Prohibition, the Palmer raids, Dred Scott, nullification, wiretapping political opponents, punitive IRS audits, and other ill-starred abuses of federal power. Joe Biden himself has talked about the corruption of power inherent in FDR’s plan. The commission notes the existence of this norm “since around the mid-twentieth century” and observes that “‘Court-packing’ has been a ‘political epithet’ in our constitutional culture for much of our recent history.”
So, how did Court-packing manage to get back on the agenda? Because Democrats saw their ideological advantage on the Court slipping away with the three justices appointed by Donald Trump. Recall that Democratic appointees maintained a majority on the Court from 1939 to 1969, who made vast changes to American constitutional law in the Democrats’ preferred political direction. While the Court has seen a Republican-appointed majority more or less continuously since Harry Blackmun joined the Court in 1970, conservatives were regularly thwarted at the Court on a great many of its highest-profile decisions for most of the past half-century. Trump’s appointees finally offered the hope of changing that.
So, even before Ruth Bader Ginsburg died in 2020, Democratic presidential contenders started talking about Court-packing. This began with Pete Buttigieg, who used the issue to vault into the top tier of candidates despite being an obscure mayor of a small college city. Kamala Harris, who supported Court-packing, ended up as the vice president. The commission’s draft report at least has the candor to bluntly acknowledge that we are only talking about this because Democratic partisans are raising the issue, and have been doing so since the Brett Kavanaugh nomination in 2018.
As the commission admits, “some proponents of Court expansion have argued that the addition of new seats to the Supreme Court, at the next opportunity, by a Democratic President and Congress, is necessary to restore the Supreme Court’s legitimacy,” and “calls for Court expansion have not only been products of the contentious appointment process; they have also been fueled by Democrats’ concerns that an increasingly conservative Court presents a threat to the progressive conception of the Constitution across a range of issues.” (Emphasis added.) In other words, this is all about getting results progressives want.
The fig-leaf excuse offered by Democrats is that they are responding to supposed norm-breaking by Senate Republicans in refusing to confirm Merrick Garland to the Court during a presidential election year in 2016, then confirming Amy Coney Barrett in 2020. The commission frames this as a need to “respond to the hardball tactics since 2016,” eliding what came before it. I have written at length on repeated occasions about why this is a misreading of the historical precedents, and the commission’s report even cites one of my pieces in a footnote. As the commission admits, “many Democrats deeply contested — for varied reasons — the legitimacy of each of [Trump’s] successive nominations to the Supreme Court.” (Emphasis added.) It never really mattered what the arguments were; they were always going to try to delegitimize any nomination that threatened to give Republican voters what they voted for over a period of decades.
The Big Pander
The commission’s draft Court-packing report does not really pretend to lay out a case that the Court somehow lacks legitimacy or public respect, or that something improper has been done in selecting the current justices. Instead, the report talks about needing to address “segments of the Democratic Party” and progressive media voices wanting Court-packing.
The report duly recites: “In 2020, more than 400 articles appeared in the New York Times, Wall Street Journal, Washington Post, and USAToday invoking the term ‘Court packing’ . . . in contrast to approximately 100 articles in 2019.” The footnotes are full of citations to a who’s who of left-leaning pundits, publications, and academics: Mark Tushnet, Dahlia Lithwick, Michael Klarman, Matthew Yglesias, Michael Tomasky, Matt Ford, Sahil Kapur, Sam Stein, Jamelle Bouie, E. J. Dionne, Elie Mystal, Adam Serwer, Jack Balkin (who is one of the commissioners), Rolling Stone, The Nation, The New Republic, The New Yorker, Slate, Vox, PBS, and The Guardian. Cited op-eds include titles such as “Republicans Stole the Supreme Court,” “How Democrats Can Make Republicans Pay for Justice Gorsuch,” “Brett Kavanaugh’s Confirmation Will Delegitimize the Supreme Court — And That’s Good,” and “Mad About Kavanaugh and Gorsuch? The Best Way To Get Even Is to Pack the Court.”
These are not exactly a representative sampling of American voters concerned about the legitimacy of their institutions; they are hyperpartisans and ideologues making arguments for how to “get even” and “make republicans pay.” Yet, the simple fact that partisans are talking about this as a problem needing a solution is treated by the commission as evidence that it is a controversy that must be addressed by the government. This is exactly the same reasoning used in Arizona for the Maricopa County election audit.
The Commission Punts the Punt
Biden’s purpose in establishing this commission was twofold: kick the can of the issue past the election, and then keep on kicking so the question is not resolved unless and until Democrats have a large enough majority in Congress to just ram through whatever they want. The chairman of the commission, Bob Bauer, is a Biden loyalist and confidant (and husband of Biden’s “political mastermind”). Bauer was already on record opposing Court-packing and preferring term limits for the justices — the subject of a separate and more enthusiastic draft report, but one that would require a constitutional amendment. Bauer’s job all along has been to prevent the commission from running ahead of what Biden is prepared to do, while also preventing it from saying or doing anything that would tie the hands of Democrats down the road.
Delay is not welcomed by the loudest activists in favor of Court-packing. Consider Aaron Belkin, of Take Back the Court, who complained this week that “we are well aware that Biden designed his court commission to waste time, not to protect Roe v Wade or restore democracy.” But keeping Biden’s options open allows him to threaten the Court to get what he wants — especially in Dobbs, the upcoming abortion case deciding the future of Roe v. Wade — without having to pull the trigger. This worked for FDR, and it has been a famously effective tactic for Democrats to keep Chief Justice Roberts constrained. Taking away that weapon is one reason why we should amend the Constitution to ban Court-packing and keep nine justices, an option that the commission pointedly ignored aside from one glancing mention of its existence. The commission notes, quite bluntly, that “an attempted expansion could lead the Supreme Court to be more deferential to the political branches, at least in the short term” — an admission that rather gives away the game.
While the commission notes that Congress could legally expand the Court’s size, it is mealy-mouthed on the actual merits of the proposal:
Commissioners are divided on whether Court expansion would be wise. . . . [Some, including] critics of many of the Court’s recent decisions . . . [believe that] Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system [and doubt] that expansion would serve democratic values. . . . Whether expansion of the Supreme Court ought to be pursued as a prudential matter presents a more difficult question [than its constitutionality].
So, the report recites arguments for Court-packing, including some new ones like the idea that a bigger Court could more “reflect the rich diversity of the nation” and (fallaciously) that “[a] larger Supreme Court might also be able to decide more cases and spend more time on emergency petitions,” as if each case does not require the input of every justice. Then, it notes the downsides: “The risks of Court expansion are considerable. . . . Court expansion today could lead to a continuous cycle of future expansions.” Indeed, it is almost certain to. Also, “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.” But other commissioners disagree!
The report then drifts off into discussions of efforts to disguise Court-packing by doing it gradually, or through the subterfuge of “rotating” lower-court judges through the Court. The draft does not conclude; it simply stops. No firm recommendation is made, and given the unwieldy design of the commission and Bauer’s role as its chairman, it is unclear whether the final report will include one. Which will put Joe Biden right back where he was in October 2020: free to do whatever he is willing to risk politically, and free to use that ambiguity to threaten the independence of the Supreme Court whenever it considers important cases. Nobody who watched this process should have expected otherwise.