An effort by progressives to expand the Supreme Court is starting to fizzle as a presidential commission tasked with reviewing the controversial proposal saps earlier momentum.
The stalled progress isn’t exactly unwelcome to Democratic leaders in Washington who are happy to avoid a fight over court expansion, which could end up being a political liability for moderate Democratic candidates in next year’s midterm elections.
Congressional Democrats would prefer to stay focused on President Biden’s infrastructure agenda and conserve their political capital for a potential Supreme Court confirmation fight if Justice Stephen Breyer announces his retirement this week.
Progressive activists who favor court expansion complain that the presidential commission is not empowered to recommend adding seats to the Supreme Court and has been set up mainly to show that Biden isn’t completely ignoring their calls for major reform.
The commission, formed in April, held its first public hearing Wednesday, and the first panel of experts offered wide ranging legal opinions, giving an early glimpse of the lack of academic consensus on whether, or how, to reform the court.
“I think the deference to academics in terms of the makeup of this commission combined with the lack of authority to make actual policy recommendations makes this commission rather toothless,” said Brian Fallon, executive director of Demand Justice, a progressive group advocating for court reform.
“So I don’t think that this commission is going to be the vehicle for facilitating any of the bold reforms that we think are needed for the federal judiciary,” he said.
“In its design, I think it’s been set up to come up well short of endorsing anything bold or meaningful,” he added.
Wednesday’s public meeting was devoted to exploring the causes of the current debate over reforming the court, the arguments for and against making reforms and what standards should be used to evaluate those arguments.
Cristina Rodríguez, a professor at Yale Law School and co-chair of the commission, said Wednesday that the panel is “not charged with making specific recommendations” but expressed hope they could offer a “rigorous analysis and appraisal of the arguments and proposals that are animating today’s debates.”
One progressive advocate for court reform described the first day of hearings as “a little tedious to watch.”
A second advocate argued that Biden and Democratic leaders haven’t shown much real desire to expand the court.
“We really don’t think of it that much in terms of moving the ball. Clearly Biden set this up to fulfill a campaign promise and has no intention of actually moving forward on it,” the advocate said.
“Our thinking is that really pushing too heavily on this right now anyway potentially complicates the up-or-down vote for Brown Jackson,” the source added, referring to Judge Ketanji Brown Jackson, a top candidate to replace Breyer on the Supreme Court who was confirmed by the Senate in June for a seat on the D.C. Circuit Court of Appeals.
Brown Jackson garnered support from three Senate Republicans in her confirmation vote, and Democratic leaders hope to maintain bipartisan support for her if there is a Supreme Court vacancy.
Other advocates have complained that Biden and Democratic leaders have sidelined the push to reform the Supreme Court by setting up a commission of more than 30 people — mostly academics — to debate the issue until well into the fall.
“It’s important and useful to have that kind of deep background on historical and legal and other aspects of court reform. I worry about how much practical use it will wind up being in the end,” said Elliot Mincberg, a senior fellow at People for the American Way, a progressive group that favors court reform.
Daniel Goldberg, legal director for the Alliance for Justice, another progressive advocacy group, said Biden’s commission “is an important step forward but is not enough on its own.”
Meanwhile, Democratic leaders are more focused in the short term about a potential Supreme Court confirmation battle if Breyer, the 82-year-old liberal stalwart, announces his retirement this week.
“If he is going to retire in the immediate future, I think it’s highly likely he would announce if not tomorrow, then later this week because I think he would want for there to be as much time as possible for his replacement to be chosen and go through the nomination process,” Mincberg said.
The presidential commission has given political cover to many Democrats on Capitol Hill to avoid answering questions about whether they support legislation sponsored by Sen. Ed Markey (D-Mass.) and House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) to expand the Supreme Court to 13 seats.
Senate Majority Leader Charles Schumer (D-N.Y.) says he’ll await the findings of the commission before weighing in on Markey’s bill.
“Look, the bottom line is that I’m waiting to hear what President Biden’s commission says about the Supreme Court, and they’re going to look at many different aspects,” Schumer told reporters in April.
That same month, Speaker Nancy Pelosi (D-Calif.) told reporters she had “no plans” to bring legislation expanding the Supreme Court to the House floor but also said “it’s an idea that should be considered” and one that’s “not out of the question.”
“There are probably a lot of rank-and-file lawmakers who are happy to have the commission give them an out so they don’t have to take a position on Ed Markey’s bill to add seats to the court,” said Fallon, of Demand Justice.
To some conservatives, the presidential commission is designed to influence the shape of the court, even if it doesn’t expand the number of seats.
Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group, has accused progressives of using the presidential commission to improperly place political pressure on the court.
Severino also noted that centrist Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have made clear they will not support getting rid of the filibuster to allow Democrats to pass controversial legislation with 51 votes.
She also criticized progressive groups for calling on Breyer to step down from the court to ensure that Biden has the chance to pick his replacement while Democrats control the Senate.
The size of the court has been expanded and shrunk over the nation’s history, and doing so would require passing legislation through both chambers of Congress and getting Biden’s signature. A proposal to place term limits on the justices would likely require a constitutional amendment.
Several Senate Democrats have already said they don’t support expanding the court. Any legislation to that effect would require overcoming the 60-vote procedural hurdle to get around an anticipated GOP filibuster, meaning any effort to change the size of the Supreme Court with a slim one-vote Senate majority was always viewed as a long shot.
Activists nonetheless see building support within the Democratic Party for expansion as an important first step toward reforming the court, even if that effort has largely been put on hold while rank-and-file lawmakers await the findings of the commission.