That is not to be. And, in fact, what is clear from the commission’s release of a draft report is that institutional changes cannot spare us from hyperpartisan appointees who lack self-awareness and honesty about their innate partisan biases.
The commission nevertheless offers some sage observations. On the question of court expansion, this draft recounts that the current controversy arises in part because of the Senate’s conduct — specifically Senate Minority Leader Mitch McConnell’s 2016 refusal to afford Merrick Garland a hearing and then to jam Amy Coney Barrett onto the court in 2020. Democrats’ outrage over “stolen seats” resulted in calls to essentially get those seats back by court expansion.
The commission finds that Congress has “broad power” to expand or shrink the court. As to the wisdom of doing so, the commission gently suggests the risks of expansion are “considerable,” threatening the legitimacy of the court. (It would be more accurate to say “further threatening” the court’s legitimacy, given how the justices have done a great deal to delegitimize their own institution.) The commission also recognizes expansion could spark never-ending efforts to grow the court until its size becomes unwieldy.
The most persuasive argument against expansion may be that it will do no good to “correct” imbalances or increase diversity if the side that created the appearance of partisanship — the GOP — is able to appoint even more justices down the line.
When it comes to term limits, the commission is much more positive, arguing that such a reform would remove the element of “luck” as to who can appoint justices. It would also end the strategic retirement game (which itself makes justices look partisan) and give older judges a shot at seats that presidents typically fill with young nominees. With staggered 18-year terms (each president allowed to make two appointments every two years), Supreme Court nominations would become less than do-or-die political brawls. The commission offers several ways of constructing the staggered terms and addressing the duties of justices who cycle off the court. Though the commission is divided on whether to accomplish this by statute or constitutional amendment. Unfortunately, Biden on Friday blithely dismissed the idea of term limits, undercutting his own commission and demonstrating a lack of urgency about court reform that continues to frustrate his base.
While it might seem like a small matter, the commission takes seriously the criticisms of the court’s “shadow docket” — referring to the emergency orders and summary decisions that the court issues without oral arguments. It recommends changes to how the court issues these orders, including steps to provide additional transparency (identifying how justices voted, providing explanations for the decision) and to limit candor from justices on why they elect to recuse themselves in a given case or not.
The commission’s analysis regarding term limits is encouraging, but its preliminary work should leave its readers pessimistic about any real reform. The chances that 60 senators would agree to term limits (during an era in which Republicans dream of decades of court dominance) remain remote. The likelihood that a court that has grown arrogant and out of touch would impose on itself ethical constraints or rules for greater transparency is even slimmer.
The court’s problems are not easily solved by structural reform. They are a function of the rise of a highly authoritarian right-wing that seeks to impose its will by any means possible — including by confirming partisan judges who lack the restraint required for responsible adjudication. When an entire political movement no longer values norms, comity or compromise, our institutions decay and lose credibility. The court’s fundamental disconnect from the American people is inevitable when justices are appointed by presidents elected by a minority of the electorate (via the anti-democratic electoral college) and confirmed by a Senate in which red states with small populations exercise disproportionate power.
Any effective court reform should begin with an effort to enhance democratic elements in our entire constitutional system, starting with a rollback or elimination of the filibuster (which in turn would allow real voting reform, admission of the District of Columbia as a state and substantial reform of the court by statute). This would also require the National Popular Vote Interstate Compact, which would award a state’s electoral votes to the winner of the national popular vote.
So long as our democracy remains a victim of the tyranny of a hyper-radicalized minority, every institution it touches will be less democratic and less intellectually honest. In that sense, true democratic reform requires replacement of an authoritarian, delusional party with one that buys into democracy and respects reality.
Note to readers: I will be going on vacation, returning Nov. 4.