During the Democratic presidential primaries, Joe Biden was one of the very few candidates who was against packing the Supreme Court, among other radical “reform” proposals. Then in the general election campaign, he played coy, ultimately saying that he’d create a presidential commission to look at SCOTUS reform. (Such commissions are typically a way for presidents to punt away controversies, hoping that the issues they look at will be less central to national political debates when the eventual report comes out — and then that report can be quietly shelved.)
Well, after a leak about a handful of putative members in January, that much‐anticipated presidential Supreme Court commission is finally here. The immediately noticeable thing is that it’s very large (36), very progressive (about a 3:1 ratio), and very academic (I count just three members from nonprofit/advocacy groups — all major figures in the progressive legal world — plus two former judges).
It’s a group of big minds and big ideas, who are now tasked with analyzing “the principal arguments in the contemporary public debate for and against Supreme Court reform, including the merits and legality of particular reform proposals.” I do hope they spend most of their charge on the first part of that question, because the Court is the most respected government institution other than the military and arguments for restructuring essentially express progressive‐elite dissatisfaction with its current composition.
“Reform” proposals boil down to rearranging deck chairs on the ship of state, because what we’ve seen is the culmination of trends whereby divergent interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted (and polarized) than any time since at least the Civil War. This, at a time when the Court regularly decides major political controversies because the federal government has amassed too much power and Congress has abdicated its policymaking responsibility by punting to the executive branch, which then gets sued.
Because of that dynamic, there are no easy or quick solutions to the politicization of judicial confirmations and the toxic cloud that has descended over many constitutional debates. So I look forward to seeing the commission’s work, but am not confident that any recommendations it produces will manage to be all of nonpartisan, feasible, legal, and actually improve the Supreme Court.
For more, read my book on Supreme Court politics, and my recent op‐eds about court‐packing, term limits, confirmation hearings, and the political history of judicial nominations.