President Biden’s Commission on the Supreme Court was never going to tell us anything about the Court that we didn’t already know. The true question was always whether its final report would thoroughly and accurately document the conservative takeover of the Court enough to help others justify taking action on Court reform, up to and including adding seats to the Court. The Commission has finalized its recommendation-free report, but in the meantime, the Supreme Court has been making the case for reform all on its own.
When Biden first established the Commission in April, it was a very different time. Justice Amy Coney Barrett was still newly warming Ruth Bader Ginsburg’s seat and the Court had not yet acted in too many ways to confirm speculation that its new 6–3 conservative majority would be quite radical. It had not issued its decisions gutting the Voting Rights Act, tightening the leash on workers to fight for better wages and conditions, enabling anti-LGBTQ+ discrimination, and reversing COVID protections. None of the justices had taken their “doth protest too much” publicity tours to defend the integrity of the Court as their public support tanked. And the Court had not yet shrugged in the face of Texas’s SB 8, allowing abortion to effectively be banned in the state, nor had it heard oral arguments in Dobbs v. Jackson, where the conservative justices made clear that Roe v. Wade’s days are numbered.
Not all of that had even transpired by October, when the Commission shared the preliminary draft of its final report. Public reaction to these drafts nevertheless told a compelling story about the state of Court reform. Conservatives lambasted the draft for encouraging Court expansion, even though the Commission explicitly avoided making any such recommendations. Conversely, progressives objected that the report over-emphasized the downsides of Court expansion and highlighted how its attempt at neutrality appeared to instead favor inaction. In short, the draft didn’t do much to move anyone from their corners.
But reactions from both sides point to the reality that the Court can’t continue in its current state and maintain any level of legitimacy. Conservatives have been determined to politicize Court expansion because they hope to distract from the reality that they were the ones who politicized our courts in the first place by blocking nominees and stealing seats. As the conservative justices increasingly demonstrate their willingness to use their newfound power to gut abortion rights and other protections that generations of Americans have held dear, this talking point becomes the equivalent of The Wizard of Oz angrily insisting: “Pay no attention to that man behind the curtain!”
On the other hand, it was immediately apparent that attempting to tell a neutral, “both sides,” theoretical story about the state of the Court was insufficient. The question of Supreme Court reform can’t just be limited to the Court itself and the politics surrounding it; it has to be about the people impacted by its actions and inactions. Getting lost in how scholars disagree about the politics of court expansion distracts from the real harm that real people are already experiencing. Pregnant Texans who can’t afford to travel out of state for an abortion aren’t dwelling on President Franklin Delano Roosevelt’s failed efforts to expand the Court 85 years ago.
Those same pregnant Texans likewise don’t have the luxury of waiting 18 years for term limits or other reforms to reshape the Court. Such reforms are worthy of consideration, but they will do little to mitigate the real harm already underway right now. Given the urgency of how much damage to our democracy the Court has done this year alone, waiting nearly a generation to change its makeup isn’t a significant improvement over the status quo of simply hoping that when justices die, it’s with the ideal party in power to shift the balance.
The final version of the report incorporated some of the initial feedback to the early draft, giving a fairer hearing to some of the proposed reforms. As Slate’s Mark Joseph Stern pointed out, however, it still gives ample room for conservative arguments against reform that are clearly made in bad faith. They argue, for example, that “Court packing” — already a conservative framing of Court expansion — “would almost certainly undermine or destroy the Supreme Court’s legitimacy.” This ignores that conservatives already “packed” the Court and its legitimacy has already plummeted as a result.
Court expansion remains the only proposed reform that can actually prevent the current conservative majority from continuing to lawlessly upend protections many Americans hold dear. That was true before the Commission was formed when the threat was still speculative, and it’ll remain true long after the Commission concluded its work if no action is taken.
If the Commission’s final report makes it politically more feasible to support Court expansion, its efforts may not have been in vain. This is true even if Court expansion never prevails, because the mere threat of its viability could make a difference in limiting how much the Court’s conservatives abuse their power. Incidentally, that’s exactly what happened after Roosevelt sought to expand the Court.
The current political climate, however, suggests that threats alone will not prevail upon the current justices not to overturn Roe v. Wade or take any number of other reckless actions with our democracy. We spent eight months waiting for the Commission to tell us what we already know as we watched the Court’s conservatives stand idly by in the face of states taking away people’s rights. We can’t keep waiting to see what they do — or refuse to do — next. The time to act is now and only expanding the Court will prevent these harms from continuing.
Nothing in the Commission’s report changes that.