By Ryan Doerfler / Special To The Washington Post
The new presidential commission on Supreme Court reform, which met for the first time Wednesday, has many eminent scholars on it — from the dean of Yale Law School, Heather Gerken, on the liberal side, to Harvard Law School’s Jack Goldsmith, on the conservative — but that’s about the only good thing most people are saying about it.
“Biden’s Supreme Court reform commission won’t fix anything,” grouses Vox. Meanwhile, Sen. Ben Sasse, R-Neb., has said that the report it’s expected to produce in six months is destined to become a “taxpayer-funded door stopper.”
The 36-member commission, fashioned as “bipartisan” and including a sizable number of conservatives, is tasked with determining whether the various reforms that have been proposed for the court, from court-packing (that is, adding justices) to jurisdiction stripping (taking away certain kinds of cases) to term limits for justices, would be constitutionally permissible and whether any or all would be desirable as a matter of policy.
Under our constitutional scheme, the ultimate decision over whether and how to reform the Supreme Court rests with Congress. So one question to ask is why Congress couldn’t simply have called these highly credentialed scholars and attorneys as expert witnesses at congressional hearings as the relevant committees consider the matter directly? The cynical answer, of course, is that establishing a presidential commission is a way of usurping congressional authority; and neutering reform. By convening a panel of individuals unlikely to recommend significant changes, President Biden could be attempting to remove from serious consideration more aggressive reform proposals. After all, he has been frank that he is “not a fan” of court-packing.
A more charitable observation, however. is that the idea of a “neutral” presidential commission appealed to Biden for the same reason he is reluctant to embrace aggressive court reform directly. He appears to admire unbiased organizations that stand above politics. He wants a commission untouched by something so coarse as ideology, just as he would like to think the court at its best is nonideological. In short, he has appointed one faux neutral body to review another. The result, again, is likely to be inaction; unless Congress presses ahead on its own.
The ideal of an unbiased, nonideological arbiter is, of course, central to the story that the Supreme Court tells about itself. The perception of the Supreme Court as “partisan” or “ideological” is portrayed as a threat to the institution’s “legitimacy.” As Justice Stephen Breyer recently put it, in a speech at Harvard Law School, it is essential to Americans’ confidence in the judiciary that its judges are not regarded as “junior level politicians.”
Breyer went on to say that it was “jurisprudential differences,” not political differences, that account for most of the disagreements among justices. But that would be easier to believe if so many of the questions that wind up before the court did not involve clearly political questions. In the eyes of many reformers — indeed, many non-reformers, too — the Supreme Court sits as the final arbiter for many of our society’s most contentious political issues, including the voting rights of racial and ethnic minorities, the balance between religious freedom and public health, and the authority of the federal government to regulate the economy or the environment. In recognition of this fundamentally political role, proponents of court-packing, for example, aim to make the court more Democratic by better aligning the justices’ attitudes with those of the broader population. Similarly, advocates of weakening the court’s power through jurisdiction stripping or other means hope to redirect these political disputes from the judicial toward the electoral arena.
Can a “neutral” commission fix the problems with the court? It seems highly unlikely. For each of the proposed reforms, people with legal expertise comparable to that of members of the commission have already offered defenses and criticisms. What such disagreement among experts suggests is that the constitutionality of any of these reforms is legally uncertain. More discussion is not going to resolve them. Under such conditions, it falls upon us as a democracy to decide which, if any, of those reforms are consistent with our constitutional tradition as we choose to develop it.
The inapplicability of the “neutral arbiter” model is even more obvious when it comes to evaluating the merits of the different reforms. To ask about the merits of court-packing, for instance, is very obviously just to ask whether adding justices would be normatively desirable; whether it would be a good or bad thing to have more justices who support abortion rights, for example. That is a quintessentially political question, one that admits of no “unbiased” answer.
What’s more, people who have been vocal in calls for reform have quite noticeably been left off the commission. The idea, again, seems to be that such individuals have prejudged the matter; they would therefore be “biased.” The idea of prejudgment is, however, an awkward fit for what is ultimately a debate about policy among experts with sincerely held views. To disqualify reform advocates from serving on the commission amounts to dismissing their substantive positions.
Biden is effectively privileging more “centrist” or more “moderate” positions; yet the push for reform has come overwhelmingly from progressives. (Republicans have shown no appetite whatsoever for meaningful reform.) Given all of this, the correct approach for congressional Democrats, it seems, would be to treat judicial reform just like any other legislative priority.
Democrats should, in other words, begin drafting legislative proposals in consultation with their constituents as well as any experts or advocates that legislators deem useful. And, fortunately, that is precisely what at least some progressive members of Congress are beginning to do, including Rep. Mondaire Jones, D-N.Y., and Sen. Edward J. Markey, D-Mass. They appear to be ignoring Biden’s highly credentialed Gang of 36; which is exactly what they should do.
Ryan Doerfler is professor at the University of Chicago Law School.
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