Talking Points

Biden's SCOTUS commission gives Democrats a rallying cry

Don't pack the Supreme Court.

At least, that's what the expert commision appointed by President Biden said. Thursday night, the panel released "discussion materials" that amount to a preliminary version of its anticipated report. Although they endorsed some possible reforms, most commissioners concluded that increasing the number of justices to boost Democrats' influence risks the court's legitimacy. 

The result is not unexpected, but the commission's findings were a blow to progressives' goals. Fearful of the court's 6-3 conservative majority and angered by the Senate's refusal to consider former President Barack Obama's nomination of Merrick Garland (now Biden's attorney general), they hoped this report would build momentum for more sweeping change. "The GOP's rigged bench is contorting our laws and issuing decisions that do not reflect, understand, or serve the people the court is meant to represent," said Sen. Ed Markey (D-Mass.) and Reps. Jerry Nadler (D-N.Y.), Hank Johnson (D-Ga.), and Mondaire Jones (D-N.Y.) in a statement Thursday. "We must pass legislation to expand the Supreme Court."

One proposal the commission viewed more favorably was term limits for Supreme Court justices. An 18-year rotating schedule would open two seats during each four-year presidential term and could lower the temperature of national politics and create a sense of bipartisan balance. The problem, commissioners noted, is that implementing this idea would require a constitutional amendment. Under today's polarized conditions, that's very unlikely to happen.

Yet with the court stuck as-is for the foreseeable future, progressive criticisms of the commision's conclusions shouldn't necessarily be taken at face value. Though they decry the court's swing to the right, Democrats know upcoming decisions on abortion, guns, and other culture war issues could help them mobilize dispirited supporters in 2022 — and perhaps 2024.

One reason the Supreme Court acquired its present exaggerated significance is that members of Congress relish the opportunity to run against a hostile court. When liberals dominated the judiciary, that strategy helped build the conservative movement — and the modern Republican party. Now it may be Democrats' turn to rail against tyrants in black robes.