Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Welcome
Go
Free Newsletter Sign Up

The Missing Voices on the Supreme Court Commission

Aug. 25, 2021, 8:00 AM

Just 10 months under the most conservative U.S. Supreme Court in modern history, the implications of a 6-3 conservative majority are being felt.

This past term, the court dealt devastating blows to voting rights and the labor movement, siding repeatedly with the privileged and powerful at the expense of everybody else. And they’re just getting started: The court has already agreed to take on cases in the next term that could decimate abortion access, gun control laws, and more.

On issue after issue, the court is on the wrong side of the democratic will, serving as a rubber stamp for corporate and conservative interests. This is by design:For decades, organizations like the Federalist Society have organized with Republican elected officials to capture the judiciary, no matter the cost.

The result is a court in which a third of the justices have been appointed by a president who lost the popular vote—twice—and two-thirds have been nominated by Republican presidents, despite Democratic control of the White House for the majority of the last 30 years.

‘Fundamentally Flawed’

In response to these concerns about the court’s basic legitimacy, President Joe Biden established a bipartisan commission to study court reform.

From the outset, however, the commission has been fundamentally flawed: It is a body in which those who have been invited to participate actively benefit from the inequities being examined, while the voices left out of the conversation are those most impacted by the far-right capture of the court.

The commission is largely composed of individuals who teach at elite law schools. Of 82 members and witnesses at the first two hearings, 57 were professors. Of those, 36 teach at either Columbia, Harvard, N.Y.U., Yale, Duke, or the University of Chicago—among the nation’s most elite law schools. Of the commissioners and panelists called thus far, only a third have been women.

These are individuals who have little incentive to honestly critique the court and its threat to our democracy. They are people who appear before the court, who have vested interests in maintaining good relationships with the very institution they’re being asked to analyze.

Not Representative

The commission is tasked, in part, with providing the president an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform.” But in prioritizing the voices of elite academics and D.C. insiders, the commission is overlooking that the most urgent conversations about court reform are the ones happening around the country, by the people most impacted by the court.

Who are those impacted people?

As a result of the pro-corporate Supreme Court’s decades-long expansion of the Federal Arbitration Act, 60 million workers have lost the right to go to court if they are wronged by their employer. They could be harassed, discriminated against, have their wages stolen, not receive the accommodations they deserve on account of a disability—and none of it could be enough to merit a hearing in a court of law. Yet not one low-wage worker has been invited to testify in front of the commission where some of the justices have been supported by big business.

In 2013, the Supreme Court struck down the heart of the Voting Rights Act in Shelby County v. Holder; in the years since, it has become meaningfully harder for many voters, particularly voters of color, to cast a ballot. By 2018, 28 states had enacted “newly restrictive statewide voter laws,” including closing polling locations.

And it wasn’t just one decision: This court has a long history of making it harder for people of color to be full participants in our democracy. Yet not one disenfranchised voter of color has testified in front of the commission.

Reform Is Needed

It’s not just disenfranchised voters or workers forced into arbitration who understand the need for reform. It’s the people who are suffering due to climate change and know that a pro-corporate court means the businesses who have knowingly caused this harm are unlikely to be held accountable. It’s the people prevented from entering the country—or from seeing their loved ones—because the Supreme Court rubber-stamped President Trump’s travel ban; low-income people whose states have opted out of expanding Medicaid as a result of the court’s ruling in NFIB v. Sebelius; workers whose employer-provided health plans don’t cover birth control thanks to the decision in Burwell v. Hobby Lobby.

It’s possible these individuals don’t all have the degrees or the pedigree that the commission seems to be looking for. But they are the reason that this debate is happening at all, and it is their voices that must be heard.

This commission will fail even by its own terms should the conversation continue to be limited to only those who can afford to treat court reform as a topic for academic debate. While it is too late for the commission itself to be changed, it is not too late for the commission to take seriously the need to center the voices of the public in this debate.

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

Write for Us: Author Guidelines

Author Information

Tristin Brown is policy and program director at the People’s Parity Project, a national organization of law students and lawyers dedicated to building a legal system that values people over corporate profits. She was previously an associate counsel at the Washington Lawyers’ Committee for Civil Rights & Urban Affairs.

Molly Coleman is the executive director and co-founder of the People’s Parity Project.

To read more articles log in.

Learn more about a Bloomberg Law subscription.