What Did Biden’s Supreme Court Panel Accomplish?

What Did Biden’s Supreme Court Panel Accomplish?

Unsurprisingly, it didn’t endorse court-packing. But its version of history may be damaging nonetheless.

Still legitimate?

Still legitimate?

Photographer: Stefani Reynolds/Bloomberg

The cynics are correct: President Joe Biden’s commission on Supreme Court reform did exactly what it was set up to do: nothing. As Georgetown Law’s Josh Chafetz put it, “wait wait wait … are you people seriously telling me that a commission set up to reinforce and justify the status quo … reinforced and justified the status quo?”

The Washington Post’s Aaron Blake isn’t wrong when he argues that the key to the whole thing is that Democrats aren’t anywhere close to having the votes to implement a court-packing scheme. Nor is it likely that Biden could’ve used the threat of adding justices to the court — a perfectly constitutional option — to intimidate the current majority of Republican-selected justices to return more moderate decisions. An empty threat without the votes to back it up isn’t going to persuade anyone. And besides, at least five of the current justices appear comfortable acting in a partisan manner, which for Republicans includes an aversion to compromise.

This isn’t to say that liberals are wrong to be upset about the commission. It’s one thing for a panel chosen by a Democratic president to ease liberals away from the pipe dream of expanding the court. It’s another for that panel to suggest — as it does — that both parties are equally responsible for destroying the norms of the nomination and confirmation process, and for that matter of the court itself. Or to implicitly argue that assessing the legitimacy of the court requires a “both sides” approach from outside observers.

Here, Slate’s Dahlia Lithwick and Mark Joseph Stern are correct about the commission’s version of history: “Lost entirely in that translation is the story about how the court’s loss of legitimacy might have at least as much to do with the actions of its members in recent years, as well as the actions of those who installed them.” The liberal version of the history of the judicial wars may or may not be correct, but liberals weren’t crazy to expect a Biden-appointed group to give it at least equal billing. Moreover, whatever the holes in that liberal story, it’s certainly more fact-based than the Republican origin myth, which falsely claims that the defeat of Robert Bork — President Ronald Reagan’s nominee in 1987 — by (supposedly) nefarious means destroyed a previous consensus that partisanship should play no role in the judiciary, a myth that among other things leaves out the defeat of nominees from both Lyndon Johnson and Richard Nixon.

At any rate, I don’t really think that “legitimacy” is a particularly helpful concept for thinking through what we want the courts to do or how justices should be chosen. Nor is it helpful to pretend that the courts are somehow untainted by politics, given that for one thing it’s obviously not true — the courts are very much part of the political system — and for another the Constitution embraces politics as a good thing, not something to be avoided.

That said, the current system isn’t perfect. Pretending that courts have nothing to do with politics prevents us from trying to link nominations more closely to election results, which is the spirit behind proposals to establish a single 18-year term for Supreme Court justices so that each president could attempt to fill the same number of vacancies over a four-year presidency. Is that the correct answer? I’m not sure. But at least efforts to ensure that the courts enhance democracy are trying to answer the right question.

1. Stephen B. Kaplan at the Monkey Cage on the debt limit and the dollar.

2. Harry Enten on why we should not expect any permanent party majorities. Yup. 

3. Zeynep Tufekci on the unvaccinated.

4. While Joseph Goldstein reports on the previously unvaccinated and why they changed their minds.

5. Bill Scher on raising the debt limit to a preposterous number.

6. Jackie Calmes on the challenge the media faces in dealing with the Trump Republican Party.

7. And my Bloomberg Opinion colleague Lara Williams answers your supply-chain questions.

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