“The Risks of Court Expansion are Considerable”: Biden Commission Leaves Court Packers Empty-Handed and Enraged

Below is my column in USA Today on the resignation of conservative members of President Joe Biden’s Commission on the Supreme Court.

Here is the column:

Internet progressives went into renewed outrage last week with objections to the “abomination” and “fixed” game being played in Washington. The subject of these attacks was not election fraud or infrastructure but the preliminary findings of the Biden Presidential Commission on the Supreme Court, which warned that “the risks of court expansion are considerable.”

Despite being composed primarily of liberal members, the commission is now being attacked as a tool of the status quo. Ironically, much like the court itself, the commission is being declared invalid because it dared to reach conclusions different from these activists. Unlike on the court, activists apparently succeeded in getting two conservative members to resign because of the recommendations.

When the commission was formed, I wrote that it did not look like a serious effort to pack the court. Rather it looked like a standard “death by commission” move by President Joe Biden. The reason was not that it was too moderate but too liberal. If Biden seriously wanted to pack the court, this commission would hardly be credible with many Americans given the small number of members in the center or on the right. As the commission acknowledged, “A majority of the public does not support court expansion.”

Cable news regular and Nation writer Elie Mystal declared on Twitter, “When you put no court reformers on your court reform commission, you end up with no court reform. This game was fixed from the moment @JoeBiden named the commission.” He denounced the whole effort as “designed to produce no change.”

In reality, the commission was divided, with some members supporting court packing and two of the few conservative members suddenly resigning Friday.

However, even if the backlash results in a purging of the report or the commission, Mystal could be partially right.

The “death by commission” tactic is a common substitute in Washington for actual political leadership. During the presidential campaign, Biden repeatedly refused to state whether he opposed packing the court. He said he would only answer the question after the election, a truly bizarre position that many in the news media then just shrugged off.

As a senator, Biden was eager to express his views when it was politically popular to oppose court packing. He denounced it as a “bonehead” and “terrible, terrible” idea. Now, however, those words would come at a cost. So Biden ordered up a commission to put space between his principles and his politics. To guarantee its placebo effect, the White House stressed that the commission would only make preliminary recommendations.

The strategy did not work in this case because Biden’s acquiescence had fueled a well-funded movement of groups like Demand Justice (which has run a billboard truck in Washington calling for the immediate retirement of Justice Stephen Breyer). For months, progressives have made court packing the litmus test for whether someone truly supports democracy. Now to their outrage, the commission wrote court expansion “could undermine the very goal of some of its proponents of restoring the court’s legitimacy. … The reform – at least if it were done in the near term and all at once – would be perceived by many as a partisan maneuver.”

If the White House hoped that the commission would serve as a type of primal scream session to release rage, it didn’t work. That was evident in the response to the initial report. The “abomination” described by the Slate writer Mark Joseph Stern is that the commission suggested that “today’s Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy.”

In other words, this commission is itself in need for reform like the court itself. It was not stacked enough or simply ineffectual because it failed to reach the supposedly “right” conclusion.

The commission did appear to vaguely support term limits for Supreme Court justices. While the limits would raise some constitutional questions, there is an argument that federal judges are only guaranteed lifetime tenure, not tenure on a particular court. However, the resulting turnover would toss out liberals and conservatives alike when groups are demanding the instant addition of four liberal justices to force a new majority on the court.

What the commission did not want to address is the fundamental flaw in the court reform movement. Most of the calls to expand the court have been based on the view that the court is “broken” because it is reaching the wrong conclusions. In other words, the court would not function correctly until it ruled “correctly.” After all, when discussing the principle of judicial review, members like Rep. Alexandria Ocasio-Cortez, D-N.Y., asked, “How much does the current structure benefit us? And I don’t think it does.”

Biden’s effort to use a commission to kill this “bonehead idea” was designed for a different time when you could let causes die from an abundance of time and talk. This is the age of rage. The commission was designed to placate radical demands for change, but it is now denounced as an “abomination” like the institution that it was tasked to study.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

It is not even clear that throwing the court under the bus would placate these activists. As French journalist Jacques Mallet du Pan famously observed about the French Revolution, “Like Saturn, the revolution devours its children.” That counts for courts, commissions and even presidents.

While the president is likely to promise to study the commission study, the calls for court packing are only likely to increase with this term as the court addresses major cases on abortion, free speech, gun rights and other issues. Biden cannot remain a pure pedestrian in this controversy.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

3 thoughts on ““The Risks of Court Expansion are Considerable”: Biden Commission Leaves Court Packers Empty-Handed and Enraged”

  1. Do these people not see that, by their very demand to appoint more liberals and jerry-rig the court, they are admitting that their newly appointed justices will be thoroughly partisan and corrupt to the bone? How “legitimate” will the court be then, and how long before the orther side appoints even more partisan judges? Democrats are screaming “insurrection” at the same time they are advancing their own. They might as well cut to the chase — do away with all government and let’s just get the damn revolution started. Then we’ll see what ultimately counts in politics: brute force.

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