Bloomberg Law
Dec. 13, 2021, 9:00 AM

The Biden SCOTUS Commission Ends Up Disappointing Everyone

Gabe Roth
Gabe Roth
Fix the Court

The Presidential Commission on the Supreme Court has finished its work—and without satisfying a single constituency across this wide country of ours. That in itself is quite a feat.

The commission—nominally established by President Biden earlier this year to study reform proposals but actually created as a way for him to avoid answering reporters’ questions on court-packing before the 2020 election—issued a 288-page report that read like a term paper largely detached from the real world.

Progressives are disappointed the commission threw cold water on court-packing, a plan, they say, that would restore voting rights and environmental regulations after years of GOP devastation, simply by adding four or six liberal justices to the current 6-3 conservative court—a claim that neglects to account for how cases actually reach the court and the historic rarity of SCOTUS leading on progressive priorities.

One thing court-packing by the left would ensure is court-packing by the right, until the Supreme Court is rendered comically large and utterly useless—though if you’re a progressive, given the court’s reactionary bent, that may be the goal.

Conservatives, performatively irate when a liberal president tries to do anything these days, say that the mere creation of a body to study reform shows that Biden is in the tank for court-packing, ignoring that Biden has never once endorsed the idea and has even expressed deep skepticism to it—as if the decision to study something and not simply look to The Daily Signal or #LiberalTears Twitter for talking points is a plague on the soul of the nation.

Moderates are disappointed that nonpartisan improvements to rebuild the public’s faith in the institution that already have broad, public support, like capping the justices’ terms and getting them to be more transparent about their finances and free trips, were either deemed too “perilous” to try (term limits) or scarcely mentioned (the perks).

Misdiagnosing the Problem

What’s missing from the report at a more fundamental level is a frank diagnosis of the legitimacy problem facing the Supreme Court today.

It’s not difficult to imagine that in the coming years, public officials in greater numbers will seek to defy the justices’ rulings—county clerks refusing to issue same-sex marriage licenses and a federal agency misapplying a court order on the eviction moratorium are just the start—as our courts are not immune to, or insulated from, our country’s increasing polarization.

Though this trend spells trouble for the third branch, the report seems content with the current state of affairs. Instead of devising ways to bolster a fragile legal system without advancing a partisan agenda—that might that sound difficult, but a heavyweight panel of three dozen legal scholars would be the body to do it—the commission simply describes several sundry attempts in U.S. history to change the size and structure of the court.

It then turns the necessity of change on its head by breathlessly proclaiming, in effect, thank goodness that despite these largely failed efforts, our country survived.

If there were ever a time to offer a full-throated endorsement of changes to our public institutions, that time would be now, as the “Year of the Insurrection” comes to a close. Other organizations have done that, but a body with the imprimatur of the White House would have been monumentally beneficial to this conversation.

Two Half-Loaves

The report concludes with two halfhearted suggestions, which for the commission, might count as glowing recommendations: establish a code of conduct for the justices and continue live broadcast of Supreme Court oral arguments.

It’s well-known that the court has no formal code of conduct. The justices generally follow the federal law saying they should disqualify from cases when they own stock in one of the litigants or if their spouse or child is lead attorney. But the nine are the only federal jurists to be exempted from the Code of Conduct for U.S. Judges, which goes beyond conflict-of-interest issues to provide guidance on how judges should comport themselves while discharging their official duties and when they’re engaging in outside activities.

Enforcement questions aside, there is unquestionable value in the judges on our highest court agreeing to adhere to certain written ethical standards. The commissioners seemed to agree, writing, “the adoption of an advisory code would be a positive step on its own, even absent binding sanctions.”

It’s also well-known that cameras are not allowed in the Supreme Court. It’s my belief that video won’t come until the Baby Boomers left on the bench are replaced by Gen Xers and younger jurists, and we’re a decade or two from that.

In the meantime, the justices should continue to stream their arguments via a live audio feed. The pandemic pushed them to do this last spring. The court will continue to livestream into next year, but there’s no guarantee this access will remain post-pandemic.

In the commission’s own words: “Given the Court’s longstanding opposition to cameras, a continuation of near-simultaneous audio would be a step toward enabling the media and interested members of the bar and the public to better follow the work of the Court.” Humph.

After it avoided addressing the court’s legitimacy crisis and making a couple of halfhearted endorsements, the commission says it is proud of its work. Everyone else will be left disappointed.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Gabe Roth is executive director of Fix the Court, a national nonpartisan organization that advocates for greater transparency and accountability in the federal courts.

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