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On April 9, President Biden issued an executive order to form a bipartisan presidential commission to examine possible reforms to the United States Supreme Court. The call came at the same time as a strong progressive push to expand the size of the court in order to allow the Democrats—with their wafer-thin control of the Senate—to add perhaps as many as four justices to the court. The plan was to convert a six-three Republican majority into a seven-six Democratic majority—assuming that the president could fill four seats with the midyear elections looming.
No more. After the issuance of the commission’s preliminary draft report, it seems that the push to “pack the court” is over. In general, the commission is to be highly commended for its preliminary work. Its exhaustive draft report has none of the signs of a political screed. Its long, thorough discussions are largely free of the inflammatory rhetoric that mars so much of the partisan debate on the role of the court. The report is well-written, scrupulously documented, and filled with arguments that start with “on the one hand,” only to move adroitly to address the issues “on the other hand.” Just that stylistic choice offers a strong sign that no controversial reform will occur. Meddling with Supreme Court tradition and practice requires a solid consensus about what is broken and an equally solid conviction of what counts as an appropriate cure.
On the court-packing issue, it is quite clear that the consensus is against the move. Indeed, I was both somewhat surprised and highly pleased with the carefulness of many of the major institutional submissions. The American Civil Liberties Union has, to say the least, taken positions that are different from mine on a wide number of issues, such as (in alphabetical order) affirmative action, abortion rights, campaign finance, and voting rights, to name a few. But the thoughtful submission by its national legal director, David Cole, sounded more like the ACLU of old, insisting that the dominant role of the courts is to protect those “unable to protect themselves through the political process,” which promptly led it to be “skeptical of proposals for court reform that would risk further politicizing the court or the processes for the selection of justices, such as proposal to increase the court’s size.”