Grassroots Democrats were already furious about McConnell’s theft of a Supreme Court seat even before Trump and his mobs tried to overthrow democracy. They didn’t just want redress, they demanded retaliation.
After Biden won, the nation held its breath, watching Republicans try to engineer a coup, and waiting to see if he would take office. The Supreme Court sat on a back burner as unfinished business.
After the dust more or less settled (but not completely), and the Constitution was preserved (just barely), the incoming president — recognizing a need to mollify his anxious and still-angry supporters — set up a 34-person commission, billed as a bipartisan panel of experts, to study “possible Supreme Court reforms,” as The Hill puts it (see story here). They’ve now completed their work and unanimously signed off on what amounts to a senior thesis.
It’s not a set of proposals. There’s not even one proposal. While “the study traces the history of the court reform debate and delineates arguments for and against various proposals,” it recommends nothing. It’s the sort of study that gets filed away and ignored, having served its purpose of making its sponsors look like they’re doing something while sparing them from doing anything.
An outside group cut to the chase. It said, “It was clear from the moment President Joe Biden failed to ask the commission for recommendations that the group was not intended to meaningfully confront the Supreme Court legitimacy crisis. … [It gave] Biden what he asked for: a book report.”
Others derided it as “milquetoast,” which it so obviously is that it doesn’t need saying.
To be sure, “Some of the commission’s more progressive members made clear Tuesday that their votes in favor of the group’s findings should not be misinterpreted as an endorsement of the high court’s status quo,” The Hill reported. This was to be expected. For example, Harvard law professor Laurence Tribe said, “In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence.”
The Hill notes that last fall, after McConnell outraged the country with his unprincipled and undemocratic maneuvering, “Then-candidate Biden largely deflected the issue but pledged on the campaign trail to establish a commission to study various proposals.” Should anyone be surprised the study is only more deflection? And should Biden be surprised his popularity is tanking among the voters who elected him? C’mon, man, grow a backbone. The people want you to show some spine.
The White House’s response? Biden’s “press secretary Jen Psaki told reporters Monday that there was no specific timeline for [him] to complete his own review of the report, and she emphasized that the report was not a set of recommendations that Biden ‘either accepts or denies.'”
Blah, blah, blah. He’d better do something. But he probably won’t.
This is an old story. Democratic voters are tired of being punching bags, and played for suckers. But they have a problem. Their leaders, and Biden is no exception, are jellyfish. This has gone on for decades. I don’t have an answer.
All I can do is suggest a possible course of action. See the commission as a threshing machine that separates the wheat from the chaff. The idea that best survived its scrutiny is term limits, not court packing. Of course, anything requiring legislation won’t go anywhere unless Democrats keep the House and win two more Senate seats (to bypass Manchin and Sinema), then brush aside the filibuster long enough to pass a court reform bill.
And then there’s 83-year-old Justice Breyer. Nobody can make him retire. He has a right to stay on the court until he drops dead, something he doesn’t want to do, and we don’t want him to do, either. But if he doesn’t retire this year, Biden may not be able to confirm a replacement. Of course, if Biden can’t even fill a vacancy, there’s no chance for term limits or court-packing, either. McConnell will keep playing his perfidious games, and the country will be stuck with a Supreme Court hated by a majority of the public and widely considered illegitimate.
This has happened before, and the precedent showcases the dangers. The Dred Scott decision was a major precipitating event leading to the Civil War. When respect for law collapses, there’s not much left except guns. With Republicans already openly talking of civil war, the last thing we need is for Democrats to also give up on rule of law. This country needs a Supreme Court people will respect, and this requires a court that deserves respect.