In April, President Biden took what appeared to be a significant step toward reforming the Supreme Court (which currently holds a 6-3 conservative, anti-abortion majority): He signed an executive order establishing a formal commission to “closely study” whether to add seats, among other reform proposals.
But in the months since, anyone who had hopes the commission would lead to action as the world — and reproductive rights — burn has probably been disappointed. In September, the commission released a draft report of its findings, which appeared open to term limits for justices but stopped short of endorsing court expansion. The report argued that “close identification of Justices with political party could undermine the perception of judicial independence” by the public, “which is important to the acceptance and compliance with the Court’s decisions.”
Democratic members of Congress called out the commission’s inaction in a letter to Biden this week, excoriating the commission for its misguided priorities. The letter, led by Sen. Sheldon Whitehouse and with signatures from Sens. Mazie Hirono, Richard Blumenthal, and Rep. Hank Johnson Jr., excoriated the commission for its misguided priorities, arguing that “the Commission must reckon with the prospect that the Court’s independence — not just the perception thereof — has been compromised.”
“We offer a different proposition: that in the face of overwhelming evidence that the Court has been captured by partisan donor interests, it is wrong to perpetuate the fiction that it has not been,” the Democrats wrote. “By grounding its draft report foremost in the concern that the public must perceive the Court to be legitimate and independent, the Commission fails to consider the very real and much more dangerous possibility that it might not be.”
The letter’s urgent tone is arguably not even urgent enough. As Biden’s commission pontificates on whether it would be polite to add seats to the Supreme Court and muses on the history of the Court’s size, people stand to lose (even more of) their most basic human rights. Two major cases on abortion rights are at SCOTUS right now, deciding the fates of Texas’ near-total abortion ban (which has been in effect for three months now, forcing Texans to flee the state to exercise basic reproductive rights) as well a 15-week abortion ban in Mississippi. Both cases have the potential to gut Roe v. Wade and strip away the humanity of pregnant people — but, sure, let’s debate what George Washington would have thought of all this.
This is an emergency: The majority of the Court’s nine seats are currently held by appointees of presidents who lost the popular vote, as well as justices who were vetted and hand-picked by the fringe, right-wing Federalist Society. Just last year, the 52 Republican senators who voted to confirm Amy Coney Barrett to the court represented about 13.5 million fewer people than the Senators who rejected her, proving just how unrepresentative the governing body that confirms justices is.
To be fair, it’s not clear what Biden’s commission, which comprises mostly academics across the political spectrum, could ever have accomplished. Even if the panel were to offer a full-throated endorsement of expanding the court, the Democratic-majority Congress and White House would be hamstrung by the filibuster. So, with the commission’s final report set to release two weeks after oral arguments for Dobbs, Democrats now have to reckon with the distinct possibility that Roe will fall on their watch, as they now hold majorities in both chambers of Congress and the White House.
As Sen. Whitehouse and the signatories on his letter note, crises like this can’t be averted by merely convincing the public to trust the same body of Justices who have nearly always stood in the way of any modicum ounce of progress; something needs to actually be done about all of this.
“[I]n the face of overwhelming evidence that the Court has been captured by partisan donor interests, it is wrong to perpetuate the fiction that it has not been,” the Democrats’ letter states. “By grounding its draft report foremost in the concern that the public must perceive the Court to be legitimate and independent, the Commission fails to consider the very real and much more dangerous possibility that it might not be.”