On Thursday, the White House’s presidential commission on the Supreme Court released a set of discussion materials in advance of its fourth public meeting, held the next day. It’s the public’s clearest view yet of how the scholars the White House convened are thinking about the concerns progressive figures and other court-watchers have raised about the state of the court as an institution. And as many expected when the commission was first announced, its work so far hasn’t been promising.
The commission isn’t close to recommending any fundamental reconstructions of the court and our judiciary.
In fairness, the commission’s deliberations could be going worse. The discussion materials conceded a surprising amount of ground to Democrats and progressives worried about the court’s 6-3 conservative skew and the moves the conservative movement made to build it, including the blocking of Merrick Garland’s nomination. In a section of the materials focused on expanding the court, for instance, the commission’s working group didn’t shy away from saying that adding more justices might beneficially reduce that skew and better align the court’s rulings with the preferences of most Americans.
“It may seem odd to some readers who regard the court as a crucial check on the political process to consider the ‘democratizing’ force of Supreme Court reform,” the working group wrote. “But the judiciary must also be checked, and the system of government as a whole must serve the interests of the people.”
Elsewhere, the working group offered a critique of those who argue that a reform that would give both parties an equal share of justices would make the court substantially more democratic.
“If the goal were to ensure that the Court roughly reflects the public will and exhibits a degree of responsiveness to the political position of the people at a given time, artificial balance between the two political parties would not achieve that objective,” they wrote.
Still, the commission isn’t close to recommending any fundamental reconstructions of the Supreme Court or our judiciary as a whole. The documents were intended as guides for its ongoing deliberations and don’t contain real endorsements or disavowals of particular ideas. Those will come whenever the commission finishes its meetings and discussions.
But there’s plenty of evidence in the materials released so far — and in the composition of the commission itself — to suggest that the commission’s recommendations aren’t going to go far in addressing progressive concerns.
In its document on court expansion, the working group focused on two counterarguments against simply adding new seats and Democratic appointees to the current court — a move Democrats could make just by passing through Congress a bill to resize the court.
The first is that adding justices might thrust the court into a cycle of instability: If the Democrats do it now, then it’s highly likely that Republicans would respond by adding even more justices whenever they regained control of government, encouraging Democrats to respond in a kind of tit-for-tat that would offer few policy guarantees to either side and that could, in theory, go on for a long while.
In fairness, settling upon the ideal form the federal judiciary would take in the best of worlds wasn’t really in the commission’s brief.
The second counterargument is that adding justices would diminish the court’s legitimacy.
“If the country and the political system were to be embroiled in repeated fights over Court expansion, that alone could harm the Supreme Court’s reputation,” they wrote. “The public might come to see the Court as a ‘political football’ — a pawn in a continuing partisan game.”
Of course, the Supreme Court is a political football: Its rulings obviously have political implications and are the subject of intensely partisan debates; candidates and organizations in both parties work constantly to interest voters in court nominations; and the nomination process is, now more than ever, shaped by partisan strategizing on the Hill. It would be shocking, given all this, if justices didn’t wind up as the representatives of particular parties and ideologies.
The commission’s working group didn’t try especially hard to deny that they do. An excerpt from its documents that went viral on social media contained a remarkable sentence: “Even if we accept the fact that the justices’ judgments have political implications, this close identification of justices with political party could undermine the perception of judicial independence, which is important to the acceptance of and compliance with the court’s decisions.”
In other words, as true as it might be that the court’s justices are political actors, the illusion of a fully impartial and independent bench should be maintained so the court’s rulings and standing as a political institution retain the public’s respect. But this raises an obvious question: If the Supreme Court really is just another political body that isn’t nearly as independent as we’ve been encouraged to think, why should its rulings be taken as impartially decided gospel?
You won’t find an answer in the commission’s work so far. Instead, much of the working group’s documents are dedicated to considering, with varying degrees of skepticism, an array of technical, nonpartisan reform ideas — term limits, rotating justices off the bench and adding justices gradually rather than all at once — that wouldn’t fundamentally change the nature of the court’s role in our government.
And, in fairness, settling upon the ideal form the federal judiciary would take in the best of worlds wasn’t really in the commission’s brief. Democrats who support court reform needn’t know for sure either. Adding justices is a temporary fix for a structural disadvantage it could take a generation or more for the party to undo and that — given the court’s gutting of the Voting Rights Act in the 2013 Shelby County v. Holder decision and all Republicans have done since to disenfranchise voters at the state level — poses a real threat to the integrity of the democratic process.
The idea that Republicans would repack the court to their advantage if given control of Congress again afterward shouldn’t dissuade advocates. The prospect of control of the court being batted back and forth indefinitely between parties might eventually give the right an incentive to support equitable and stabilizing reforms they don’t have now. At that point, a commission such as the one President Joe Biden’s convened could be useful, as inadequate as the current commission is to the moment at hand.