Joe 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.
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