Last month, the Biden Supreme Court reform commission delivered an initial set of “draft materials” which, in troubling news for people actually interested in Supreme Court reform, blithely downplayed the Court’s most urgent problems or outright ignored them. This week, four Democratic lawmakers signed a letter imploring the commission to address one of the more jarring omissions: any discussion of the role of shadowy multimillion-dollar lobbying campaigns in drastically altering the ideological composition of a Court now controlled by a supermajority of six conservatives.
In the letter, Connecticut Senator Richard Blumenthal, Rhode Island Senator Sheldon Whitehouse, Hawaii Senator Mazie Hirono, and Georgia Representative Hank Johnson urge the commission to investigate “the role of secretive special-interest influence in and around the Court,” which received conspicuously short shrift the first time around. “As currently drafted, this report is a disappointment to anyone who had hoped for a clear-eyed effort to address the Supreme Court’s deep troubles,” the lawmakers write.
The letter goes on to outline the coordinated efforts outside the Court to maximize the impact of conservative power within: for example, the common funding sources shared by the Federalist Society, a prominent conservative organization to which President Donald Trump largely delegated his judicial nominations process, and an assortment of right-wing advocacy groups that sponsored expensive advocacy campaigns in support of those nominees’ confirmations. Other arms of the conservative legal movement organize barrages of friend-of-the-Court briefs inviting the justices to champion the conservatives’ preferred outcome, and cherry-pick plaintiffs whose cases can serve as vehicles to overhaul the law as quickly as possible. All of these alarming developments, in theory, sound like things a blue-ribbon committee charged with analyzing the merits of reforming an embattled institution as powerful as the Supreme Court should consider!
As Whitehouse has written elsewhere, under the leadership of Chief Justice John Roberts, the Supreme Court has taken up some 80 cases that implicate hot-button partisan issues, and that the Court ultimately decided along 5-4 or 6-3 ideological lines. It has delivered wins to right-wing special interests every single time.
“As currently drafted, this report is a disappointment to anyone who had hoped for a clear-eyed effort to address the Supreme Court’s deep troubles.”
The letter was released in anticipation of the commission’s fifth public meeting on Friday, November 19, and the accompanying set of draft materials reporting on the commission’s progress. Once again, the members of a Supreme Court “reform” commission have been careful to avoid doing anything that might be construed as fulfilling the task they’ve been assigned. “There is profound disagreement among commissioners over whether adding Justices to the Supreme Court at this moment in time would be wise,” they write in their updated draft. “We have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the Court.” Asking a commission this committed to inaction to also examine the relationship between right-wing money and decades of one-sided Court decisions, apparently, is far too much to ask.
Above all, the Democrats’ letter returns to the most persistent criticism of the Commission’s work: its bold, unsupported assertion that both sides are equally to blame for the politicization of the Court. “In the face of overwhelming evidence that the Court has been captured by partisan donor interests, it is wrong to perpetuate the fiction that it has not been,” they write. “By grounding its draft report foremost in the concern that the public must perceive the Court to be legitimate and independent, the Commission fails to consider the very real and much more dangerous possibility that it might not be.”
From its inception, the commission has been more concerned with assuaging public concern about the Court than considering actual reforms to it. This hands-off treatment of the millions of dollars being spent to put right-wing foot soldiers on the federal bench is emblematic of its failure. Unless the commission reverses course and takes this crisis seriously, its work is bound to be meaningless.