President Joe Biden’s blue-ribbon commission, stacked as it was with forced birther Federalist Society types, has finally and somewhat surprisingly issued a report that doesn’t argue for the status quo. That’s because it doesn’t argue for anything. It spent the last eight months meeting, eating up time, giving Biden an excuse for a delay on moving to fix the courts, to come up with, in essence, this:
“We do not see to evaluate or judge the weight of any of these arguments, and the Commission takes no position on the wisdom of expansion.”
That’s pretty much the crux of the court reform debate—the need to balance the wild extremism of the solid conservative majority of five (with Chief Justice John Roberts being the one slightly squishier extremist making it sometimes it six) with more justices who aren’t bought and sold by political dark money groups. Like the Federalist Society. It does note that “there is profound disagreement among Commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise.” So they didn’t make a recommendation.
That’s an improvement on the preliminary draft which suggested a proposal to expand the Supreme Court to achieve some ideological balance might “reinforce the notion that the Justices are partisan actors,” and that “it is far from clear that ideological balance is in and of itself a desirable goal.” So at least it didn’t recommend tossing the idea of expansion in the bin. It also doesn’t issue recommendations on term limits for justices or curtailing the court’s power to toss out legislation. It does say that the Court should continue to livestream its oral arguments and that the high court should finally have to adopt and abide by a code of ethics, something it has always exempted itself from.
Now it’s up to the White House to figure out whether to let this Court continue to dismantle decades of social and racial justice. “If President Biden wants to be taken seriously on this issue, he needs to put forward serious structural reforms,” said Sarah Lipton-Lubet, executive director of the liberal group Take Back the Court in a Bloomberg interview. “It’s been clear from the start that the commission wasn’t going to produce anything actionable. It’s equally clear that it simply cannot be the administration’s actual response to the crisis we’re facing.”
The White House has little to say on the subject at the moment. Press Secretary Jen Psaki was noncommittal about Biden’s potential response. “He’ll have to review it first and I don’t think we’re going to set a timeline for what that looks like and what it will mean after that,” she said.
Speaking of timelines, Take Back the Court has one detailing all the damage the Supreme Court has done since it was announced on April 9, 2021. In the intervening 8 months, the court has radically curtailed workers’ right to organize; further gutted the Voting Rights Act; gave a boost to dark money organizations to make it easier for them to buy elections; interfered in Biden’s executive power in conducting foreign policy to impose Trump’s “’Remain in Mexico’ policy on the administration; further eroded Biden’s executive power by overturning the CDC’s pandemic eviction moratorium; allowed Texas to ban abortion and has kept that ban in place even while it is being litigated in lower courts; and heard oral arguments that could end up dismantling states’ gun safety laws and throw out abortion rights nationally.
There damned well should be a sense of urgency in the White House over the Supreme Court, because this Court will take on every challenge Republican states will bring to Biden’s policies. That’s a guarantee. A growing number of legal experts is raising that alarm.
Speaking at meeting of the commission, retired federal judge Nancy Gertner said, “Far worse than criticizing the Court is to ignore its real problems. […] That’s what risks the legitimacy of the institution,” she added. “I am more convinced than ever that change is necessary. This is a uniquely perilous moment that requires a unique response.”
Laurene Tribe, legal scholar and Professor Emeritus at Harvard University, added that the Court’s legitimacy is at stake. “All is not well with the Court. It no longer deserves the nation’s confidence. Even if expanding it would momentarily shake its authority, that risk is worth taking.”
The risk is worth taking because the stakes are ... well, everything. The continued existence of this nation as a democratic republic rather than a white supremacist fascist state is in question. The literal future of every human on the globe if climate change isn’t tackled. We’re teetering on a tipping point with multiple dimensions of disaster below us. Expanding the Supreme Court isn’t sufficient action to stabilize us, but it’s absolutely necessary.