The Presidential Commission on the Supreme Court of the United States holds its final public session this week and will deliver its final analysis by Thanksgiving. Headlines such as “Commission Publishes Report” don’t typically spark major reforms to our democracy. But the right strategy – one that capitalizes on an even more intense moment in the spotlight that is coming up for the high court – could bring more Americans into a debate historically dominated by insiders and activists.
The opportunity is real because the commission is examining major topics that are interesting, accessible and tailor-made for public education and debate, such as whether to add seats to the Supreme Court and adopt term limits for the justices. It’s even looking at calls to roll back the Court’s power to strike down laws passed by Congress.
The commission is also assessing other, less dramatic but important issues, such as regulating Supreme Court ethics, when justices should recuse themselves from hearing cases and ways to promote greater transparency at the high court.
Whether or not major change is in the offing, these questions could create a real educational moment that calls on Americans to weigh the right balance of judicial independence and accountability in a democracy — and apply their values to calls for fundamental changes that could profoundly affect our lives.
But the commission, created to mollify court-packing progressives, wasn’t designed for broad national impact. The president didn’t ask for recommendations, only a report weighing the pros and cons of current reform ideas.
With a six-month assignment and members drawn from across the political spectrum, the commission wasn’t built to defy our polarized politics or generate consensus on fundamental changes to the Supreme Court.
The worst scenario would be an insider’s treatise that gathers dust. A report for judicial junkies would be a dispiriting reminder of why Americans – or at least the 99.6 percent who don’t go to law school – typically shrug their shoulders at court reform issues, leaving major decisions to partisans and legal elites.
But the commission’s hard work doesn’t have to end up in Washington’s graveyard. It has gathered the raw materials for a great national conversation, in the form of arguments about Supreme Court reform issues from dozens of experts representing a breadth of views. Many are highly accessible.
Properly edited and publicized, these debates could offer a national master class on what courts do, their role in our democratic system and whether it should change.
When the report is done, President Biden should call on the commission and its expert witnesses to fan out and use their work to engage Americans online, on talk shows and podcasts, and at in-person gatherings. He should urge civic groups, bar associations and media to host debates and discussions centered on the commission’s big questions. Law schools and universities can organize events and seminars.
The opportunity for a true national debate is about to grow dramatically, because the Supreme Court is about to return to center stage in American politics. On Dec. 1 the Court will hear arguments in an effort by the state of Mississippi to overturn Roe v. Wade, the most controversial decision of the last half-century.
For millions of Americans, the Supreme Court’s deliberations (and its ultimate decision) will trigger a round of fresh and fundamental thinking about our courts and their role in a democratic society.
That’s why it’s so important that the Biden commission’s work be used properly. It offers a rare opportunity to deepen the coming debate beyond social media memes and TV sound bites, bring citizens of all stripes into a truly national conversation and help democratize the insider debate over our courts.
Bert Brandenburg was the Justice Department’s chief spokesman and director of public affairs under Attorney General Janet Reno. For more than a decade, he ran Justice at Stake, a nonpartisan organization dedicated to keeping courts fair and impartial.