Hey Joe, don’t be an obstacle! It’s time to reform the Supreme Court.
Six months ago, President Joe Biden commissioned a body of academics and judicial experts to study the structure and composition of the nation’s high court.
Ideas put forward by the bipartisan commission were low-key in measure, primarily focused on matters of transparency and ethics. In the end, they were bypassed and ignored by a president that harbors a deep avoidance of large-scale structural reforms.
Six months later, some constituent elements of that group, who called for decisive action are saying, “I told you so”.
Former U.S. District Judge Nancy Gertner was a member of that commission. She stated in an interview that the court’s striking down of Roe v. Wade, a New York law restricting the open carry of handguns, and striking down the EPA’s ability to regulate the emissions of carbon pollution underscored her belief that additional justices should be added to the nine-member court.
“It was a place of solidity and rational discourse. It really is not anymore,” Gertner said of the SCOTUS. “It really is a set of decisions that they did only because they can. And that is an exercise of pure power, not legal reasoning.”
When Gertner initially joined the administration’s commission, her respect for the institution of the Supreme Court made her reluctant to embrace larger-scale changes like additional members. Rather, she felt modest structural reforms, (like term limits), would ﬁnd utility. All that went out the window after she heard expert testimony who felt that additional seats should be added to the court.
While Gertner eventually came to embrace the idea, others did not. The ﬁnal report included underwriting new codes of ethics and more court openness. It avoided endorsing topics like expansion and term limits.
Six months later, Gertner believes she was correct. “This is absurd. Of course, there’s something we should do,” she said. “When you read the drat … and then you watched as the court did whatever it wanted to do. I changed.”
Gertner’s support for court expansion following the recent rulings provides an insight into the growing tension that Biden now faces. An increasing number of individuals on the political let now say the Biden administration has deeply misgauged the major problems presented by the right-wing, if not an overtly fascist court — not simply as a matter of legal standing but as a core subject of democratic governance.
Gertner states that she’s “deeply frustrated” with Biden for not meeting the challenge head-on. And she’s hardly by herself.
“His admiration for the court as an institution has been overtaken by reality. And I think it’s time to wake up,” says Harvard Law professor Laurence Tribe, a member of the commission and someone who has advised the Biden White House on legal aﬀairs. “It’s the court itself that has plunged ahead without any inhibition on a kind of highly activist, agenda-driven, right-wing ideological jihad.”
Aides and supporters dismiss the opinion that Biden is not adequately animated about the court’s far-right turn. He made immediate and multiple admonitions of the court’s decision to overturn Roe as evidence of his concern and suggested that they are “damned if they do, damned if they don’t” on these types of subjects — pointing at days of pushback they heard from Republicans and members of their own party after Biden pointedly criticized elected Republicans for limiting voting rights in remarks in Georgia early this year.
And yet, they minimize the suggestion that court expansion is the ﬁx, suggesting that while it may be popular on the let, it’s without recognition of governing realities.
“The president has blasted the court’s decision in Dobbs attacking Americans’ most personal rights as ‘extremist,’ ‘outrageous,’ and ‘awful’ and taken swift action while warning against the national abortion ban congressional Republicans are seeking,” White House deputy press secretary Andrew Bates said, noting Biden also has condemned the SCOTUS decisions on guns and environmental regulation.
“He’s being straight with the American people, giving voice to their biggest concerns, and leading the way on protecting their rights and middle-class families’ ﬁnances,” Bates added.
Biden appointed his court commission, in answer to agitation on the political left over the appointment of three justices by Trump, including Amy Coney Barrett — immediately prior to the ’20 elections. Co-chaired by former White House Counsel Bob Bauer and Yale Law professor Cristina Rodríguez, it included 36 members and spanned the ideological spectrum. The 294-page report it submitted generated little commotion, reading more like an academic treatise of the court’s composition than a political way forward with ﬁxes.
Biden’s critics say they never expected him to outwardly embrace court expansion. However they also want him to stop taking it oﬀ the table.. and to be more openly and vociferously critical.
“If you’re in a kind of theoretical game situation with an opponent who begins acting in bad faith, what do you do? Do you continue to play by the rules and hope that will incentivize them to return to the norms? Or do you retaliate in a tit for tat way and thus hopefully incentivize [them] to go back to the traditional norms?” Michael Klarman, a Harvard law professor who testiﬁed to Biden’s court commission, said in an interview.
“I think you’re a fool for not doing what’s in your power to try to protect the system,” Klarman added, calling Biden “hopelessly naïve” for opposing court expansion.
White House insiders openly acknowledge that Biden’s deep-seated, near-religious belief in the requirement for enduring institutions comes at a cost. That cost is a failure to support more aggressive ﬁxes. They can’t imagine him ever altering that view, having both chaired the Senate Judiciary Committee whose platform that was about bipartisanship, not a revolution. Biden’s staﬀers suggest also wants to avoid a diﬀerent type of tit-for-tat with Republicans that culminates in each side adding more seats. Americans at large remain divided on the concept of court expansion. In a recent POLITICO/ Morning Consult poll taken after Roe was overturned, 45% of all voters are in favor of increasing the number of justices, and 64% of Democrats. However, insiders working on the issue suggest that there would be more momentum — at least on the political let — if Biden himself didn’t reject the idea out of hand.
“Why does Biden consider it his job to keep the public having conﬁdence in a court that is completely working to thwart his agenda?” asked Brian Fallon, the executive director of the court reform group, Demand Justice. “He’s not ready to endorse it. [But] why demotivate his people that are passionate and upset at that moment? Why not leave a little fear in the minds of the Republican justices on the court about what he might support once he gets into oﬃce? Why not put a little fear into Mitch McConnell about what he might be for?”
These are quite valid and signiﬁcant questions. It’s later than many realize. Fascism is on the march in this country. It would be better not to get caught ﬂat-footed.
Of course, some Democrats and allies of the White House, caution against spending scarce political capital on something that still doesn’t have the majority support of Democrats in Congress.