What Happened to Biden's Court Reform Commission?
Democrats are running out of time to reform the courts.
It seems like years ago that Republicans—in one of the more shocking power-grabs in recent memory—jammed Amy Comey Barrett’s Supreme Court nomination through the Senate just a week before Donald Trump lost the presidential election. At the time, Democrats rightfully saw Barrett’s nomination as a mortal threat to the progressive agenda for a generation. As Senate Majority Leader Chuck Schumer said, Barrett’s “nomination is part of a decade’s long effort to tilt the judiciary to the far-right; to accomplish through the Courts what the radical right and their allies … could never accomplish through Congress.”
The gravity of Mitch McConnell’s unprecedented power-grab led to a widespread discussion about court reform on the left. In particular, several moderate senators left open the possibility of adding seats to the Supreme Court, a proposal that until then existed only on the fringes of the progressive movement. It seemed, for a moment, like the right-wing capture of the courts had finally hit a breaking point.
But Joe Biden hit the pause button when, in an interview shortly before the election, he announced a plan for a bipartisan commission to study various court reform proposals. “It's not about court packing,” Biden said. “There's a number of other things that our constitutional scholars have debated and I've looked to see what recommendations that commission might make.” The commission, Biden said, would make recommendations within six months, which Congress could then consider.
We didn’t hear anything about the commission until late-January, when Politico reported that staffing the commission was already underway. But that was it. The Biden Administration did not give a timetable for getting the commission set up, and there has been no word about it in the two months since that report. Even if the commission were to get underway today, it would not issue recommendations until late-September, with the midterm elections knocking on the door.
While court reform may be taking a backseat in the early days of the Biden Administration, the importance of addressing the issue has only increased. Quietly, Republicans are already looking to the courts to thwart the American Rescue Plan Act, President Biden’s hugely popular COVID-19 stimulus package. The lawsuits, brought by Republican state attorneys general, seek to use the Supreme Court’s controversial opinions regarding the Affordable Care Act to stop the federal government from providing billions of dollars in aid to budget-starved states. This alarming development piggy-backs on the broader effort to give the courts veto power over nearly every executive action taken by the Biden Administration using an obscure, long-debunked legal theory.
This is exactly the situation that many warned about. Commissions are, almost by definition, slow—the whole idea is to gather as much information and as many views views as possible and aggregate it all into clean, streamlined recommendations. Commissions may be good where the issues are complex and building consensus is necessary; but they lack any apparent value where everyone already understands the solution and the political landscape is largely fixed. As Alex Shephard at The New Republic wrote at the time:
The bipartisan commission on court reform follows in the proudest tradition of side-stepping the actual question of court-packing while promoting a series of milquetoast reforms that will both fail to address the enormity of the problem at hand and still lack the credibility to gain Republican support in Congress.
A commission on an issue like court reform is especially problematic because the law, by nature, is itself slow to act. Lawsuits, like the ones challenging the American Rescue Plan Act, take forever. It may be years before the Supreme Court, seemingly out of nowhere, jettisons key provisions of Biden’s most popular achievements. This creates a problematic cycle: as progressives celebrate more legislative wins, the urgency for court reform dissipates, even as the opportunities for judicial attacks increase. This is precisely the problem—you cannot do anything until you address the problem posed by the courts. There’s no way to escape it.
Which is why a six month bipartisan commission itself is concerning, to say nothing of a six month bipartisan commission that is taking months to get going. Court reform should be seen by Democrats as a prerequisite to every other priority: otherwise, none of the ambitious proposals President Biden intends to pursue will be safe or even likely to survive a legal challenge. And Democrats are already running out of time: it won’t be long before the midterm elections swallow-up the airwaves, making it extremely unlikely that Congress will be able to absorb, debate and enact the commission’s recommendations in any meaningful timeframe, if at all.
Of course, even if Democrats fast-track the issue of court reform, it is by no means guaranteed to garner support from centrist Democrats, particularly in the Senate. But it is hard to see how the likelihood of success increases as the midterm elections draw nearer and the wounds of Barrett’s nomination continue to heal. In the meantime, Republicans will file lawsuit after lawsuit, almost ensuring that Biden’s agenda will take a major hit once it’s too late. Both politically and as a matter of policy, time is not on the Democrats’ side. If Biden intends to live up to his promise on court reform, he ought to get his commission together immediately.