Biden Court Reform Commission Meets, Supreme Court Raises With 'LOL, We're Banning Abortions'

This is the worst poker showdown ever.

Because the universe is engineered for maximum nihilism, the same week that the United States Supreme Court decided to take up a direct assault on Roe v. Wade, the Biden administration’s Supreme Court reform commission held its first meeting. That juxtaposition either amounts to Biden bringing knife to a gun fight or the Handmaid’s caucus throwing gasoline on what was moments before dying embers of judicial reform. Which it turns out to be is mostly in Biden’s hands.

The first meeting was, as expected, mostly an exercise in housekeeping, bringing all the members together for the first time. Still, Court reformers are taking a cautiously optimistic view of the proceedings. “As the Commission’s work begins, a wide majority of Americans already believes that significant changes must occur at the Supreme Court to preserve its legitimacy in an increasingly polarized world,” Fix the Court executive director Gabe Roth said. “Americans want a Court that’s independent of the day’s political winds, that follows basic measures of transparency and whose justices serve shorter tenures. The Commission has a unique opportunity to study and advance these and other reforms, and I hope they don’t squander it,” Roth added.

Oh, they’ll squander it.

The Commission has committees exploring two major reform efforts championed by Fix the Court, specifically staggered term limits for the active Supreme Court panel (either effective immediately or through expansion until the current justices are all gone), and a review of “general transparency and ethics.” Both important initiatives that could use a spotlight. Unfortunately, the Commission is not charged with making formal recommendations — one more reminder that this was set up as a useless distraction — but at least C-SPAN 8 viewers might catch some of the hearings between ‘The Steny Hoyer Power Hour” and “Teen Bachelorette hosted by Matt Gaetz.”

Yet there was never any need for a commission! We all know the viable reform initiatives out there. Expansion, term limits, extending the Code of Conduct to the Supreme Court, etc. Academics have debated these proposals to death for years. All the White House needs to do is just pick a direction and take it to the legislative branch. Congress can gather the exact same testimony but also has the power to then, you know, vote on it.

Supreme Court expansion is off the table given the current Senate complement — which is a good thing because expansion is a nightmarishly short-sighted idea — but staggered term limits, an overwhelming popular proposal, could garner support. Ted Cruz is unafraid to embrace hypocrisy, but even he’s advocated staggered term limits in the past so there’s at least some historical support among conservatives.

Cynical commentary clings to the requirement that federal judges hold office during good behavior to prevents a legislative fix — going so far as to concede that obviously expansion is statutory fix, since it’s a political non-starter, but term limits just can’t be done. Except this proves too much. The Constitution says there’s a Supreme Court and leaves it relatively up to the other branches to dictate how it’s structured and functions.

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Could all decisions be assigned to an active panel of the 9 most recent barring recusals? Of course, and for the same reasons everyone agrees that the political branches can expand the Court. And the Supreme Court could always nix this interpretation, but if you want to see how quickly the public mood would shift toward outright expansion, watch the reaction when a self-interested Court squashes a proposal polling at 77 percent. There may well be 5 votes just to protect the institution from forcing a political showdown with the branches that actually have practical power.

Just go ahead and propose something! Force a vote on it! Kicking the can forever down the road isn’t an option while the existing Court eyes throwing away half a century of women’s rights precedent — after already gutting labor and voting protections — while an academic committee holds Zoom meetings. It’s just unilateral surrender to forces undermining the foundation of the country.

But maybe the anti-abortion gang on the Court overplayed their hand. Maybe popping their heads up while Biden was mostly ignoring judicial reform was an ill-considered strategic move. Maybe putting the Court right in the middle of the political firestorm and setting up the 2022 midterms as a referendum on abortion rights wasn’t the smartest ploy. In this high-stakes showdown, could Biden be slow-playing the Court?

It’s always possible… but not particularly likely.


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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.