During the Democratic presidential primaries, Joe Biden was one of the few candidates against packing the Supreme Court, among other radical “reform” proposals.
Bernie Sanders happened to be another, recognizing that adding additional seats for political reasons would just lead to Republicans doing the same thing at their next opportunity.
But then in the general election campaign, Biden played coy, not wanting to alienate activists who saw his candidacy as nothing but a vehicle for defeating Donald Trump. Saying that the judiciary was “out of whack,” he proposed a commission to study possible reforms.
The White House finally revealed that Supreme Court commission this month. There are three striking things about it: It’s big (36 members), progressive (about a 3-to-1 ratio), and academic (all but three are professors).
The size of the commission will make hearings unwieldy. The ideological skew won’t give the group much credibility with Republicans, though the media will surely use the presence of the token non-progressives to paint any recommendations as bipartisan and noncontroversial. And the tilt to law school faculty will make it easier to dismiss the commission’s work as ivory-tower pontification with little relevance to the real world.
It’s quite possible that the Supreme Court won’t make too many waves at the end of its term in June, both because John Roberts and Brett Kavanaugh (the middle of the court) don’t want to attract political attention and because the docket doesn’t have as many blockbusters as most years.
The opposition to Trump’s nominees was part of the continued refusal to accept the 2016 election, but progressives have made legitimacy arguments against every Republican appointee, going back to the sexual-harassment allegations against Clarence Thomas and the Supreme Court’s having “selected” George W. Bush.
But the court is the most respected government institution other than police and the military, so questions of legitimacy principally arise when the justices rule in ways that disagree with progressive orthodoxy.
Commission co-chairman Bob Bauer, who was counsel to the Biden campaign and White House counsel under President Obama, has argued publicly against court-packing, but he’ll have a hard time reining in that kind of impulse. And even if he builds consensus over something like term limits — which could help restore confidence in the confirmation process and eliminate the morbid health watches we now have as justices age — that wouldn’t fix the underlying reason why we argue about the Supreme Court.
All these “reform” proposals boil down to rearranging deck chairs on the ship of state, because we are more polarized than at any time since at least the Civil War. This, at a time when the court regularly decides major 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.
For example, the culture war over contraceptive coverage under Obamacare — remember the Hobby Lobby and Little Sisters of the Poor cases? — was based on action by regulatory agencies, not anything Congress legislated.
Because of that dynamic, there are no easy or quick solutions here. So while I’ll be keenly interested in the commission’s work, I doubt that it’ll produce anything novel or that improves the functioning of the Supreme Court. And I doubt even more that any policy recommendations will be both uncontroversial and doable.
Ilya Shapiro is a vice president of the Cato Institute (cato.org) in Washington. The article was edited for length.