Last week, the Biden presidential commission on Supreme Court reform published a set of “discussion materials” in advance of its final, official report on the subject. Over the course of the 200-plus pages of non-searchable PDF files —a decision that should be punishable under the Geneva Conventions—the commission aimed to “set forth the broad range of arguments that have been made in the course of the public debate over reform of the Supreme Court.” The commission’s treatment of those arguments makes abundantly clear that their primary interest is ending that public debate as expeditiously as possible.
The talking points, for the most part, are what you’d expect from a task force composed primarily of law professors, appellate lawyers, and former federal judges with a vested interest in the Court’s institutional legitimacy: a collection of milquetoast platitudes about the importance of maintaining public trust in a principled, nonpartisan judiciary, no matter how unprincipled or partisan the judiciary’s work actually becomes. At one point, the document warns that “the belief that the judiciary is independent can be undermined if judges are perceived to be ‘playing on the team’ of one party or another,” an assertion that briefly caused me to wonder if the commissioners are somehow blessedly unaware of Mitch McConnell’s existence.
The document also takes great pains to make clear that its academic musings on the outer limits of judicial authority should not be rooted in the realities presented by this specific Court of nine specific justices. The commission explicitly notes, for example, that it did not “attempt to discern whether the Court is beset by a crisis of legitimacy,” or “determine whether any particular perspective on…the Court’s composition today is ‘correct,’” or “take a position on whether the Court’s independence is at risk or whether it has become too anti-democratic,” which raises the obvious question of what, exactly, a commission on Supreme Court reform imagined its task to be in the first place.
Of the proposals up for discussion (but, again, not recommendation, because God forbid these people hazard an answer to the question presented), the one of which the commission is most skeptical is adding seats to the Court. The risks of expansion are “considerable,” the document says, and could “undermine the very goal of some of its proponents of restoring the court’s legitimacy.” At one point, there are somber admonishments that future high-profile expansion battles might cause the public to “see the Court as a ‘political football’” and “a pawn in a continuing partisan game,” as if the process of confirming a life-tenured Supreme Court justice is currently a sleepy, muted, bureaucratic affair in which few senators of either party take an interest.
By contrast, the commission is far more enthusiastic about the notion of instituting term limits for the justices, which it asserts would make appointments “fairer, less arbitrary, and more predictable.” Such proposals, the document says, already enjoy “widespread and bipartisan support” among lawyers, members of the public, academics across the ideological spectrum, and even more than one sitting justice. Term limits are presented not as a tired manifestation of cynical partisan maneuvering, but as an opportunity to advance “our Constitution’s commitments to checks and balances and popular sovereignty.”
Even by the lowly standards of blue-ribbon presidential commissions, this outcome is—and this is a technical term—weak shit. The document repeatedly frames the paramount issue as whether people perceive the Court as legitimate, rather than whether the Court’s work is, in fact, legitimate. But for voters of color in Arizona who just watched six Republican-appointed justices hollow out the Voting Rights Act at the Republican Party’s request, for example, expansion would not “politicize” the Court, because the Court’s relentless assault on the right to participate in democracy has been going on for decades. As usual, the people wringing their hands over the Court’s political nature are those who are less likely to be meaningfully affected by the Court’s political choices.
Perhaps this result was to be expected from a commission ostensibly created to study Supreme Court expansion that, as Slate’s Mark Joseph Stern pointed out in April, conspicuously includes no prominent advocates for Court expansion. Instead, it is a group of elite lawyers who have spent their careers comfortably existing in the Court’s orbit, working backwards from the conclusion that the institution is good and righteous and worth preserving in its current form. The document’s tone is equally revealing about who the commissioners understand their audience to be: It seems unlikely, for example, that they would bemoan the judiciary’s “politicization” if they were writing for women in Texas who no longer have safe access to abortion care because the Court allowed the state’s obviously unconstitutional anti-choice law to take effect. The commissioners are status quo superfans presenting as thoughtful critics who cannot imagine having these conversations with anyone else.
During Friday’s public meeting, it seemed clear that at least some commissioners are none too happy with the pessimistic tone the “discussion materials” take. Correctly noting that adding seats is the simplest and most clearly constitutional method of reforming the Court, Harvard Law School professor Andrew Crespo criticized this flippant treatment of expansion for “sending a message that the underlying problem the intervention is trying to address is neither urgent nor serious, if it even exists.” His colleague Nancy Gertner, a former federal judge, warned that the commission had failed to account for the “unique threats to democracy” posed by this uberconservative Court. “Put simply, the usual self-correcting mechanisms of the Court will not work now, when confirmation norms are ignored and when the net effect is to ensure one party’s continuation in power,” she said.
The framing of expansion as a petty partisan squabble is also a gross oversimplification that, as NAACP Legal Defense Fund President Sherrilyn Ifill put it, “does a disservice to the commission and a disservice to the issue.” As Ifill details, there are plenty of good reasons to expand a clubhouse of nine unelected, unaccountable lawyers that do not stem from a particular rooting interest in the political horse race: the Court’s glaring lack of professional and demographic diversity, the influence exerted on its members by special interest groups, its ongoing roles in undermining democracy and entrenching minoritarian rule, and so on. To the extent that it is “partisan” to point out that the Roberts Court is wildly out-of-step with the American public, it is only because Republicans have been so decisively winning the same political power struggle that conservatives pretend to find so unseemly.
The most basic problem with privileging term limits over Court expansion, however, is that term limits are exactly the kind of half-measure solution to which Democrats always seem to gravitate. They are, to be clear, a great idea in theory. If attendees at a 21st-century constitutional convention were building a Supreme Court from scratch, setting a reasonable upper limit of the number of years each justice can serve would seem like a prudent choice.
The country, however, is not starting from scratch. After more than two centuries, the Court is firmly in the control of a half-dozen culture warriors who share partisan loyalties and ideological preferences with a rapidly-shrinking coalition that has proven willing to do just about anything to maintain its grip on power. Term limits and Court expansion are not mutually exclusive to this problem, nor should they be, because capping the length of judicial service at some point in the future does nothing to address the crisis that this 6-3 conservative supermajority faces right now. Touting term limits as the preferred solution is like glowingly describing the state-of-the-art sprinkler system you plan to install in your house while you stand outside and watch the house burn to the ground.
Even this cautious support for term limits came with giant asterisks: The commission took care to note its skepticism that Congress can institute term limits by statute, as opposed to the herculean task of enacting them via constitutional amendment. In either case, it is difficult to imagine Republican lawmakers surrendering their hard-earned Court majority by agreeing to limit the tenure of justices they already installed on the bench. And as Harvard Kennedy School professor Maya Sen noted on Twitter, this public trepidation paves the way for savvy Republicans to frame term limits proposals—again, the option that supposedly enjoys “widespread and bipartisan support”—as just another illegitimate Democratic power grab. The commission’s language pays mere lip service to the merits of term limits while further insulating the Court from even incremental attempts to rebalance it.
The unexpected death of Justice Ruth Bader Ginsburg last fall gave Democrats in Washington a golden opportunity to build public support for Court expansion, which increased significantly in the aftermath of Justice Amy Coney Barrett’s warp-speed pre-election confirmation. Delegating that task to an ad hoc collection of law review enthusiasts who met over Zoom every few weeks was perhaps the least efficacious method of accomplishing that result, short of doing literally nothing. This tepid endorsement of term limits embodies the flaws that plagued the commission from the beginning: a body convened for the limited purpose of running out the clock, tasked with writing down lots of big words about this country’s broken legal system while simultaneously saying nothing of consequence.