Court Reform Is Dead! Long Live Court Reform!

The Commission on the Supreme Court’s findings may end up helping to set reform in motion, rather than stopping it in its tracks.

A photo illustration of cogs and wheels of a machine with an ionic column in the middle.
The Atlantic

About the authors: Ryan D. Doerfler is a professor of law and the Herbert and Marjorie Fried Research Scholar at the University of Chicago Law School. Samuel Moyn is the Henry R. Luce professor of jurisprudence at Yale Law School and a professor of history at Yale University.

Joe Biden’s Commission on the Supreme Court voted on the final version of its report last week. In five dense chapters, it lists the pros and cons of reforms such as adding justices, limiting their terms, reducing the Court’s power, and improving its inner workings. A couple of minor exceptions aside, the commission hewed to the task the president gave it, which was not to endorse anything but to weigh the “merits and legality” of different options. Many of the Court’s critics believe that such a lack of forward momentum was the goal from the get-go: to stifle reform politics after a lengthy delay and leave things exactly as they are.

But if the commission was intended to be the place where Court reform went to die, its effect in the long term may be the opposite. With calls to change the Court still very much alive, ideas that were once fringe have now moved to the center of Court discourse. And with radical action by the Supreme Court continuing in the coming years—likely starting with the overruling of Roe v. Wade but not stopping there—we may look back on the commission as helping to set reform in motion, rather than stopping it in its tracks.

Biden promised to set up the body days before the 2020 election. At the time, Democrats were furious at Senator Mitch McConnell’s successful stocking of the Court with conservatives, including, most climactically, his replacement of Justice Ruth Bader Ginsburg only a week before the election. This move amplified calls for Biden and other Democrats to pack the Court upon taking office, a reform previously considered beyond the pale. With his respect for precedent and tradition, Biden wished to avoid weighing in on this politically explosive proposal. The commission was his attempt to avoid having to do so.

As soon as it was announced in April, Biden’s commission was panned by progressive commentators. The commission included many conservatives and conspicuously excluded the progressives who had been most vocal in demanding reform. Recognizing that this centrist assortment of ex-judges and law professors was unlikely to call for radical change, Slate’s Mark Joseph Stern wrote that “the commission already gives us some indication where Biden falls on the political question of court reform—specifically, that he’s not willing to do it.”

When drafts of the commission’s report dropped in October, the results amounted to a call to think hard and do nothing. In its complexity and length (the document is more than one-fourth footnotes), the report smells of the lamp. Nor did the commission undertake efforts to communicate and defend its findings in order to dramatize the momentous stakes for its fellow citizens. In a snarky moment, Senator Sheldon Whitehouse of Rhode Island dismissed the results as “faculty-lounge pablum.”

But in the closing weeks of the commission’s work—as the Supreme Court was showing its hand on abortion—the plot took a surprising turn. With most reforms, the report lists promising and problematic features, leaving the overall implication that none is particularly viable. But this also has an unexpected effect: Taking seriously reforms that had once been ridiculed as off the wall.

This is most apparent on the question of Court packing. Almost no one thinks that the Constitution forbids adding justices, but the draft sounded notes of grave caution all the same. “The risks of court expansion are considerable,” it emphasized. One of the commissioners, the Harvard professor Andrew Crespo, worried that arguments in favor of expanding the Court had been “teed up to be knocked down.” In effect, he remarked, the report sent “a message that the underlying problem … is neither urgent nor serious, if it even exists.” Joined by another commissioner, the NAACP lawyer Sherrilyn Ifill, Crespo’s minor rebellion was the only part of the October meeting to draw serious coverage—forcing the commission back to the drawing board.

This was not the first time the commission had accidentally generated the reform energy it was supposed to contain. Back in June, the group convened publicly to discuss for the first time the merits of various reform proposals. And although the interminable meeting seemed intended to sap the will of reform advocates, the testimony that received the most attention by far was that of the Harvard professor Nikolas Bowie, which went viral on Twitter and was given pride of place in both national reporting and op-eds calling for a more democratic law. Building on earlier calls to “disempower” the Supreme Court, Bowie’s testimony helped many progressives see that the threat posed by that institution goes beyond the reactionary attitudes of individual justices, and includes the undemocratic power the justices wield, regardless of ideological leaning.

Because the commission started out with Biden’s need to preempt calls for Court packing, it would have been surprising if the final report had backed them or other similarly aggressive reforms. In the end, adjusting to pressure from progressives while keeping the remaining conservatives on board (two resigned), the report is simply neutral. “There is profound disagreement among Commissioners,” its final version reads, “over whether adding Justices to the Supreme Court at this moment in time would be wise.” The main revision made in the finalization of the report, though, is a slightly warmer attitude toward term limitation of judicial service—giving this remedy a little love by spelling out its legal plausibility in detail in compensation for the cumulative effect of saying that no reform has gained broad consensus so far.

No one, of course, knows exactly what Biden will do now, though he is on record, both as a presidential candidate and as president, opposing even term limits, to say nothing of Court packing or limiting the Court’s authority to hear constitutional cases. Fortunately, though, where Court reform goes from here is not up to the commissioners, or even the president.

It is up to Congress. Any of the reforms considered by the commission would have to be enacted through new legislation. And while any legislation of this sort would face familiar difficulties in the Senate, there’s reason to believe that that dynamic could eventually change. Most immediately, the Supreme Court appears set to severely weaken abortion rights in the pending case Dobbs v. Jackson Women’s Health Organization. Such a decision would put even more pressure on Democratic lawmakers to limit the filibuster, a needed step to “codify Roe.” Federal abortion legislation would, moreover, be an obvious object of judicial resistance. This political reality would, in turn, compel Democrats to contemplate ways to push back against a hostile judiciary.

While abortion rights have unique political visibility, the problems for Democrats go well beyond that issue. As illustrated by decisions hampering the Biden administration’s handling of COVID-19, emboldened conservative judges seem ready to make good on their promise to dramatically constrain the federal administrative state. On issues such as health care and climate change, Democrats can thus expect the Supreme Court to continue to frustrate their policy agenda in ever more ambitious ways. Pressure on Democratic lawmakers to make changes to an excessively powerful judiciary will only increase over time. But along with McConnell’s hijinks and the Supreme Court’s continuing drift to the right, the attempt to contain Court reform might have helped unleash it.

In other words, with apologies to Winston Churchill, the commission’s report is not the end of the story, or even the beginning of the end. Rather, it is only the end of the beginning.