Chris Lange, FISM News
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A bipartisan commission tasked by the White House with exploring Supreme Court reforms voted unanimously on Tuesday to send their final report to the president’s desk, without giving any firm opinions.
While the missive was replete with historical references to court reform debate and supporting and opposing arguments on various proposals, the 34-member panel stopped short of making any recommendations in the 288-page report, much to the consternation of progressive Democrats who have repeatedly championed court-packing as a means of quashing unfavorable decisions by overturning the Court to a liberal majority.
The commission’s general tone throughout the submitted findings was one of neutrality, though they did express “profound disagreement” over the court-packing issue. The group did, however, concur on other items in the study, including adopting term limits for justices.
The panel, representing some of the nation’s leading constitutional scholars and court experts, was assembled by President Biden amid pressure from Democratic lawmakers who were furious over the hasty confirmation of former President Trump’s third Supreme Court nominee, Amy Coney Barrett, in the final days leading up to the 2020 presidential election. Democrats were particularly galled in light of the fact that they were denied a hearing in 2016 to confirm then-President Obama’s pick, Merrick Garland, to replace the late Justice Antonin Scalia following strenuous objections from Republicans who argued that election-year confirmations were improper.
Biden repeatedly side-stepped the controversial issue of court packing during his presidential campaign, eventually saying he would not authorize it; however, in perhaps a placatory effort to extend an olive branch of sorts to his frustrated progressive base, he adopted a middle-ground approach in forming the commission.
Lead panelist Bob Bauer, who served as White House counsel for former President Barack Obama, and Yale Law School professor Cristina Rodriguez, a member of Obama’s Office of Legal Counsel, both warned that intemperate changes to the Supreme Court could potentially harm democracy down the road.
“Indeed, in recent years, we have seen democratic governments ‘regress’ or ‘backslide’ with respect to judicial independence,” read a portion of the report. “This has come about through electoral majorities using their power to restructure previously independent institutions, including courts, to favor the political agendas of those governments.”
Some progressive members of the commission sought to clarify their positions on the report, stating that their votes to submit the findings should in no way be interpreted as an approbation of the Supreme Court’s status quo.
“In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy,” said Harvard law professor Laurence Tribe. “I no longer have that confidence.”
Groups pushing for radical changes to the Supreme Court expressed dissatisfaction with the report, particularly in terms of President Biden’s perceived weak-kneed approach to progressive court reforms.
“It was clear from the moment President Joe Biden failed to ask the commission for recommendations that the group was not intended to meaningfully confront the Supreme Court legitimacy crisis,” wrote the Project On Government Oversight. “The commission worked diligently and thoughtfully, but its deliberations made painfully apparent that it would only give Biden what he asked for: a book report.”
Many liberals are clamoring for Biden to move forward with adding additional justices to the Supreme Court despite no recommendation from the commission. Despite these often-loud voices, the majority of Americans have said that they are not in favor of either party “packing the court,” according to a poll earlier this year. A Mason-Dixon poll released in April of this year revealed only 27% of Americans were in favor of adding Supreme Court seats, with 68% of the nation those polled in opposition to the idea.
The commission’s findings also augur future debate on issues such as placing limits on the Supreme Court’s jurisdiction and granting Congress the authority to override decisions.
The high court has been at the center of heightened political acrimony over potential decisions that could profoundly impact gun laws, church-state separation issues, and abortion. Last week, the justices heard arguments in a case involving Mississippi’s 15-week abortion ban which carries with it the potential to weaken or potentially overturn Roe v. Wade. The decision in that case, expected sometime in the spring, will provide telling insight into future decisions in light of the court’s current 6-3 conservative majority.
Now that Biden is in possession of the report, it is expected that his progressive base will continue to exert pressure on the commander-in-chief to answer questions about his administration’s plans to address court reform.
White House press secretary Jen Psaki told reporters Monday that there was no specific timeline for Biden to complete his own review of the report.