The Presidential Commission on SCOTUS issued its “discussion materials,” more than 200 pages of incredibly exciting academically moderated words that largely ended up where pretty much everyone expected, whether because the commission was crafted for the purpose of going nowhere fast or because there was never any other serious option given that the cries for radical change to undo the putative conservative theft of the Court were childish and just as partisan, if not more, than Mitch McConnell’s refusing to give Merrick Garland a hearing.
And the people who expected otherwise are pissed.
“Commissioners are divided on whether court expansion would be wise,” one draft paper said. “The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy.”
The materials are still in draft form, meaning that they do not as yet represent the “report” and recommendations to the president, but the idea that there will be some radical change from here to there is extremely aspirational at best.
“Recent polls suggest that a majority of the public does not support court expansion,” the paper said. “And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform — at least if it were done in the near term and all at once — would be perceived by many as a partisan maneuver.”
The argument presented covers both the theoretical concerns as well as the practical, that expanding the Court to put enough reliably progressive votes on it to create a majority while calling it “balanced” is neither the way to preserve the legitimacy of the institution or appease the public. Despite the absolute belief of progressives that they are the voice of the majority of Americans because Biden beat Trump, the majority of Americans don’t necessarily agree. And they are pissed.
“This was not even close to being worth the wait,” said Brian Fallon, the executive director of Demand Justice. “The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several die-hard conservatives who are fully content with the status quo.”
To be fair, the creation of a commission is often a mechanism to make ideas die a painful death. Ironically, Fallon’s attack on a commission “made up mostly of academics,” the group of folks most inclined to accept his flagrantly partisan fringe positions, seems a bit disingenuous. Even more ironic is his grievance that the commission had “several die-hard conservatives,” as in his twisted vision, it should only have had “die-hard progressives”? Even so, how did those conservatives so overwhelm the commission that even the progressives recognized that packing the court was counterproductive?
Then again, it’s not as if his counterparts on the right are any less whiny.
“Far-left progressives are clearly trying to expand their political power under the guise of ‘court reform,’ destroying the independence of our judiciary and threatening the civil liberties of all Americans,” said Kelly Shackelford, the president of First Liberty Institute.
By not packing the Court, Kelly? Strong argument.
It’s not as if Biden’s forming a commission to study the problem reflected anything other than a means to soothe the fevered brow of those who assiduously argue that the Supreme Court is determined to wreak havoc on their favorite constitutional rights. Biden never supported court packing, and while the cries of illegitimacy are primarily intended to neuter public acceptance of the Least Dangerous Branch, it can’t be cured by making it even more flagrantly partisan and illegitimate.
The commission might never have been taken very seriously by anyone as a source of potential change. Then again, the radical changes demanded were never taken very seriously by anyone who understood that a less than desirable Supreme Court was better than nothing.
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