The BDN Opinion section operates independently and does not set newsroom policies or contribute to reporting or editing articles elsewhere in the newspaper or on bangordailynews.com.
Andrew L. Seidel, a constitutional attorney and author, is the director of strategic response at the Freedom From Religion Foundation. This column was produced for The Progressive magazine and distributed by Tribune News Service.
A tepid new report from Joe Biden’s presidential commission on the Supreme Court has failed to embrace the one best solution — adding seats to the court to counter years of court-packing.
The report, which the commissioners unanimously voted to approve on Dec. 7, cited “profound disagreement over whether court expansion at this moment in time would be wise.” It decided to simply present the arguments for and against, rather than “judge the weight of any of the arguments” or take a “position on the wisdom of expansion.”
The report also declares that expanding the court “would almost certainly undermine or destroy the Supreme Court’s legitimacy” and would be seen as “a dangerous power grab by one political party,” without mentioning that this has already happened.
Partly, this is Biden’s failure. The commission was empowered to produce a report on court reform, not actually make recommendations. However, the United States faces a problem, not a question. It’s clear what must be done with our captured Supreme Court. The problem is summoning the will to do it.
Former Senate Majority Leader Mitch McConnell stole two Supreme Court seats, and Donald Trump as president outsourced judicial picks to a shadowy network of organizations spearheaded by the Federalist Society. Judges were selected for their fidelity to conservative and Christian nationalist ideology, not their skill and discernment — and certainly not their experience.
McConnell and Trump didn’t steal these seats because they wished to put thoughtful, impartial, nonpartisan justices on the bench for life; they stole them to enthrone partisan activists who would overturn Roe v. Wade, destroy the revered “wall of separation between church and state,” and check every other box on the conservative wish list.
The current court is so extreme that Justice Brett Kavanaugh, one of the most conservative jurists in the country, is now the ideological center of the court.
Our failure to expand the court has allowed five conservative justices to strike down some public health orders in the middle of a lethal pandemic in the name of religious freedom. This ignored eight decades of precedent and has led to the avoidable deaths of many Americans.
We also won’t be able to fight the climate crisis unless we expand the court. Reproductive rights are gone unless we expand the court. And the same will be true for contraception and marriage equality.
This is because every progressive plan, every public health order, every vaccine mandate, every abortion ban, every voter ID law, everything can be brought before this Supreme Court — a captured, broken body. The justices have lifetime appointments and the power to send us back to the dark ages. Fixing the court is all that matters. And that’s why the commission’s report is so inadequate.
The commission’s composition seems to have undermined its purpose. Christopher Kang, who ran judicial picks for the Obama White House, puts it like this: “You wouldn’t have a climate change commission with climate skeptics. Here we have a Supreme Court commission with people who don’t think the Supreme Court is broken.”
The incentives were for the commissioners to align with the status quo and hold off on any deep, thoughtful institutional criticism. Harvard Law School Professor Nikolas Bowie told the commissioners: “I think our commitment to democracy demands that we be honest about the harm that our Supreme Court as an institution causes.”
Our commitment to democracy demands this honesty, and the commission has not honored that duty. The Supreme Court must be expanded now — even if the commission is too timid to ask for that.