Last week, President Biden’s Commission on the Supreme Court issued its report. And nobody really noticed.
Good. There was no reason for anyone to have noticed, because there was no reason for the Commission to exist, because there is nothing wrong with the Supreme Court.
That’s right: Nothing. There’s nothing wrong with the role the Supreme Court plays in our Constitution. There’s nothing wrong with the number of justices of the Supreme Court, which has been nine since 1869. There’s nothing wrong with the way that those justices are appointed or retire. There’s nothing wrong with the way the White House picks those justices, or with how the Senate confirms, rejects, or ignores those picks. There’s nothing wrong with the docket, or with the timetable, or with the way that opinions are published. It’s all fine. Sure, some members of the Court are good, and some are bad, just as some decisions of the Court are good, and some are bad. But ’twas ever thus.
The commission was ostensibly convened to present “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.” The commission was really convened because the Democratic Party simply can’t bear the idea that, for the first time in a long time, the Supreme Court is not in their pocket. This is not about institutional legitimacy. It is not about democracy. It’s not about stare decisis or the rule of law. American progressivism didn’t care about precedent when the Court was inventing all sorts of nonsense out of whole cloth, and it doesn’t care about it now. It cares about power, and it senses that with an originalist majority on the bench, it has lost one of its favorite political tools for a while. And so, as with every American institution that temporarily frustrates it, it has started talking about “reform” and “fixing” and “mending” and “correcting” it so that it ends up more likely to do what it wants it to do.
Thing is, though: Democrats being a little sad does not a crisis make. Hell, it does not even a problem make. A few years ago, Joe Biden understood this. Today, like the rest of his party, he does not. Happily, though, the total lack of response to the Commission suggests that a majority of Americans still do.