Democratic lawmakers on Friday trashed a draft report released by President Joe Biden’s recently formed Presidential Commission on the Supreme Court, saying its findings fall short of the kinds of reforms needed to restore integrity to the court.
“This report is a disappointment to anyone who’d hoped for a hard-hitting effort to address the Supreme Court’s deep troubles,” said Sen. Sheldon Whitehouse (D-R.I.).
“The White House Commission on the Supreme Court ‘draft’ misses the mark,” reads a joint statement from Sen. Ed Markey (D-Mass.) and Democratic Reps. Jerrold Nadler (N.Y.), Hank Johnson (Ga.) and Mondaire Jones (N.Y.).
“After years of Republicans upending precedent, breaking their own rules, and stealing seats on the Supreme Court, we must restore legitimacy and integrity to the Court and undo the damage Donald Trump and Mitch McConnell have inflicted on our democracy,” they said.
Biden created the commission in April as a way to compromise with progressives who were pushing for his support in reforming the conservative-led court, whether by expanding its number of seats, imposing term limits for justices or instituting other reforms. Biden opposed expanding the court during his 2020 presidential campaign.
The draft report released Thursday doesn’t make specific recommendations. The stated goal of the panel, which will submit a final report to Biden next month, is to “provide an analysis of the principal arguments” for and against Supreme Court reforms. But the draft report’s language and structure strongly suggest opposition to the idea of adding new seats to the court, and each paragraph in the report presenting the arguments for court expansion is finished with a rebuttal in opposition to the idea.
What’s Behind The Commission
Democrats have grown increasingly angry in recent years as Republicans have ignored Senate precedents and leaned on millions of dollars in dark money to install conservative justices onto the court.
In 2016, then-Senate Majority Leader Mitch McConnell (R-Ky.) refused to give President Barack Obama’s nominee, Merrick Garland, a hearing for nearly a year by inventing a “rule” that the Senate could not consider a nominee in a presidential election year. (Justice Anthony Kennedy was confirmed in 1988, a presidential election year.) Republican senators then insisted that if Hillary Clinton won the 2016 election, they would shrink the size of the court and leave a seat open for the entirety of her presidency. However, lawmakers eventually filled the seat with President Donald Trump’s pick, Neil Gorsuch.
In 2020, McConnell and Senate Republicans ignored the rule they said they were following in 2016 ― that a Supreme Court seat shouldn’t be filled in a presidential election year ― by rushing to put another one of Trump’s picks, Amy Coney Barrett, onto the court a few weeks before the election.
In both of those instances, the Judicial Crisis Network, a conservative advocacy organization, spent millions of dollars in dark money. And the organization worked closely with another conservative group, the Federalist Society, to ensure that all three of Trump’s Supreme Court picks ― along with dozens of his lower court picks ― were vetted and approved by members of the organization.
The Supreme Court now has a 6-3 conservative supermajority, and Republicans have appointed 15 of the last 19 justices to the bench. The last year the court featured a majority appointed by Democratic presidents was 1969, even though Democrats have won the popular vote in seven out of the last eight presidential elections. The court’s conservative majority exists largely due to the counter-majoritarian nature of the Electoral College. Trump notably got three court nominations ― the most by a single president since Ronald Reagan ― after losing the popular vote by nearly 3 million votes.
Whitehouse, who chairs a Senate Judiciary subcommittee on the courts, said Friday that you’d never know from reading the commission’s draft report how the last three justices got their seats on the court. He noted, for example, that JCN spent $7 million to block Garland’s nomination and another $10 million to support Gorsuch’s confirmation. A single anonymous donor contributed $17.9 million to the group’s efforts. An anonymous donor, perhaps the same one, also gave another $17 million to JCN to help confirm Brett Kavanaugh.
You’d also never know from the report that the Supreme Court has been making “intensely political partisan decisions” hinged on findings of fact that were not an appellate court’s ordinary province or that were “demonstrably false,” Whitehouse said.
And you’d never know from the report that in civil cases decided by a 5-4 partisan majority on the court, in which there was an evident Republican donor interest, “the donor interest win record was an astonishing 80-0,” he said.
Commission Members Question Draft Report
Members of Biden’s Supreme Court commission debated the content of the draft report during their first public meeting on Friday. Many objected to the way the report addressed the issue of court expansion, particularly by framing it as entirely partisan.
“To the extent that this report frames the entire discussion that way, I think it does a disservice and actually silences the arguments that might be raised by the people who are operating in that space of thinking about democracy and respect for the rule of law,” said Sherrylin Iffill, president of the NAACP Legal Defense Fund. “The framing of this as a purely partisan exercise, I think, does a disservice to the commission and does a disservice to this issue.”
Others argued that the report’s slant against court expansion elides recent history by stating that there is a “decades long norm against court packing.” The report does this, they said, by incorrectly describing how Republicans came to appoint the last three Supreme Court justices.
“There is an intelligible, coherent and, to many people, persuasive argument that the Supreme Court has been packed twice in the past five years.”
– Andrew Crespo, Harvard Law School professor
“The norm has been broken recently,” said Andrew Crespo, a Harvard Law School professor.
Crespo argued that Republicans packed the court when they reduced its size to eight seats for the last year of Obama’s presidency and threatened to keep it at eight if Clinton won — then increased the court back to nine seats when their candidate, Trump, became president. They did this based on a made-up precedent that the Senate cannot vote on a Supreme Court nominee in a presidential election year, he said, and then promptly violated their own precedent to confirm Barrett just days before the 2020 election.
“There is an intelligible, coherent and, to many people, persuasive argument that the Supreme Court has been packed twice in the past five years,” Crespo said. “Expansion proponents take the reasonable and to my mind correct view that norms are only norms if their violation means something.”
For now, the Biden commission’s report denies this recent history. Instead, the current text embraces the view that the court must be seen as above politics ― despite the obvious partisan machinations that have been at play ― for it to maintain the support of the public.
“Even if we accept the fact that Justices’ judgments have political implications and ideological motivations, this close identification of Justices with political party could undermine the perception of judicial independence, which is important to the acceptance of and compliance with the Court’s decisions,” the draft report reads.
Commission members may yet change the draft report’s language. As it currently stands, however, the report will serve as a useful prop for anyone arguing against reforming the court. The conservative majority continues to empower corporations, prevent action on climate change and roll back civil rights, voting rights and women’s rights to control their own bodies.
“This was not even close to being worth the wait,” Brian Fallon, executive director of Demand Justice, a progressive judicial advocacy group, said of the draft report’s release. “The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several diehard conservatives who are fully content with the status quo.”
The good news, according to Fallon, is that the Constitution leaves it up to Congress to set the number of justices on the Supreme Court. And there is currently a bill to do just that, called the Judiciary Act. Demand Justice recently launched a $1.5 million program aimed at pressuring Democrats to get behind that bill, which would increase the number of seats on the court from nine to 13.
“While this commission has hemmed and hawed, a court expansion proposal has been introduced in Congress and is gaining new cosponsors each week,” Fallon said. “That proposal remains the only viable path forward here, even if the commission cannot recognize it.”