The “discussion materials” released last week by President Joe Biden’s Presidential Commission on the Supreme Court has been greeted with the frustration of one who has been forced to wait a long time for an undercooked, flavorless meal. This is likely just as the administration intended: Nobody who paid any attention to this thing expected the commission to come out in favor of Court expansion. It literally excluded people from the Court reform community, and was instead made up of law professors, advocates who have to play nice with the Supreme Court as part of their jobs, and Federalist Society members who think the Court-packing already carried out by Mitch McConnell and the Senate Republicans is the only manipulation that should be allowed. The commission was designed to give Biden, who publicly opposes Court expansion, an excuse to do nothing, while muddling the issue in a “both-sides” morass that would obscure rather than illuminate public understanding of the stakes.
I had hoped that the anti-expansionist talking points produced by the commission would at least be the normal ones. I expected them to go on about the supposed dangers of endless partisan retribution (which they did) while ignoring the fact that, thanks to McConnell, we are already in an endless cycle of partisan retribution (which they also did). But the Commission also included arguments against expansion that were just incorrect, and seemed purposefully designed to mislead the public on what expansion is and where it sits within the legal tradition.
The most egregious gaslighting comes in the “comparative perspective” section, where the Commission tries to situate the U.S. Supreme Court in the global context of high courts. After an inane digression about whether “nine” is a big or small number in the global context—imagine debating whether the District of Columbia should become a state by first asking whether “51” is too few or too many administrative divisions compared to Canada or Germany—the commission comes to the completely unsupported opinion that “the American example in the world matters.”
“There are important differences between the situation in the United States and the situation in various nations experience democratic backsliding,” they write. “Nonetheless, some Commissioners believe that there is a real risk that the willingness of Congress to expand the size of the U.S. Supreme Court could further weaken national and international norms against tampering with independent judiciaries.”
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