Biden's Supreme Court commission.

The commission formed by President Biden released its first set of documents.
Isaac Saul Oct 18, 2021

I'm Isaac Saul, and this is Tangle: an independent, ad-free, non-partisan politics newsletter that summarizes the best arguments from across the political spectrum — then my take. First time reading? Sign up here.


Today's read: 13 minutes.

President Biden's Supreme Court commission released a preliminary report. What does it mean? Today, we're answering that question. Plus, a reader asks about Sen. Sinema (D-AZ), some programming notes, and a lot of important news hits.

 Photo: Pete Souza / White House
Then President-elect Barack Obama and Vice President-elect Joe Biden with Justices during a visit to the U.S. Supreme Court in Washington, D.C. on Weds. Jan. 14, 2009. Photo: Pete Souza / White House

Programming notes!

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Quick hits.

  1. Up to 17 American missionaries and at least one Canadian citizen were kidnapped by a gang in Haiti. (The details)
  2. Former U.S. Secretary of State Colin Powell died at the age of 84 from Covid-19 complications. Powell, who was vaccinated, had multiple myeloma, a type of blood cancer that decreases the body’s power to fight infections. (The story)
  3. A U.S. Capitol Police officer was indicted on obstruction of justice charges for allegedly helping a participant in the January 6 riot hide evidence of their involvement. (The indictment)
  4. The Biden administration is preparing to reinstate Donald Trump's "Remain in Mexico" asylum policy in November. (The policy)
  5. The FDA's vaccine panel unanimously endorsed J&J's booster shot for adults. (The endorsement) Separately, fully-vaccinated foreigners will be allowed to enter the U.S. beginning November 8. (The date)
  6. BONUS: In order to earn the vote of Sen. Joe Manchin (D-WV) on their reconciliation package, Democrats are considering dropping a clean electricity program that's a key piece of President Biden's climate agenda, as well as adding a work requirement and a family income tax for the child care tax credit.

Today's topic.

The Supreme Court commission. Last week, the commission formed by President Biden to study potential reforms to the Supreme Court — including expanding the number of seats and establishing term limits — released its preliminary findings. On Friday, members of the commission discussed and debated the potential reforms in a public meeting. The commission plans to release a final report in mid-November.

In total, the commission said it collected testimony from 44 witnesses, 6,500 public comments, and written statements from 23 experts. Two members of the 36-person commission, both conservatives, resigned shortly after the preliminary findings were released on Thursday, though neither commented publicly about why they decided to leave.

In its public release of documents and during the discussion on Friday, many members of the bipartisan commission seemed concerned about calls to expand the court, and the committee — as expected — was divided. “There are significant reasons to be skeptical that expansion would serve democratic values,” one of the committee’s documents said.

Members of the commission seemed more open to applying term limits to justices, saying they would improve the court's legitimacy in the eyes of voters and make appointments seem "fairer, less arbitrary, and more predictable." Still, the commission also said term limits could destabilize the court and lead to "more frequent doctrinal shifts" that could result in major precedents regularly being overturned.

President Biden has not yet commented on the commission's early report, which was over 200 pages, and it's unclear if he'll make any reform recommendations even when the commission concludes its work. He established the commission shortly after his term began in response to Democrats who said Republicans had damaged the court's credibility by refusing to hold a vote on former President Barack Obama's nominee Merrick Garland and then rushing to confirm Amy Coney Barrett at the end of Trump's term immediately after Ruth Bader Ginsburg died. Many Democrats have called for expanding the court or instituting term limits on justices. At least four Congressional Democrats criticized the initial report for not endorsing court expansion.

Below, we’ll take a look at some responses from the right and left, then my take.


What the left is saying.

The left has mixed feelings about the commission, with some arguing it is acting as expected and others saying it is delaying necessary reforms.

In The Washington Post, Aaron Blake said the commission removed "pie from the sky."

"President Biden’s Supreme Court reform commission appears to have served its purpose: to delay and take the sting out of a politically divisive issue — court-packing — until emotions can calm down," he wrote. "The commission cautioned that increasing the size of the court would be perceived as partisan maneuvering with significant consequences for the court and its future. It would not only be perceived that way; it would be that way, and with massive untold consequences. Whatever one thinks of what Republicans have done in recent years — first by declining to even give President Barack Obama’s nomination of Merrick Garland a hearing by citing a supposed principle against confirmations in a presidential-election year, and then abandoning that principle to confirm Amy Coney Barrett last year — packing the court would indeed set the court (which has had no more than nine justices for 150 years) on a path of no return.

"This was always something of a pie-in-the-sky idea," Blake wrote. "Not only is the proposal a drastic one, but Democrats have floated it with virtually no ability to actually make it a reality. They began talking about it when they were in the minority in the Senate and didn’t even have the presidency; today they have the barest of majorities in the Senate — 50 seats plus the vice president — and can’t even get all their senators to agree on a major infrastructure package. But a vocal portion of the base pushed it hard during the 2020 presidential race, and Biden did what you do when you’re uncomfortable with an idea but don’t want to totally and immediately disappoint a core constituency: say you’ll appoint a blue-ribbon commission to look into it.”

Ja'han Jones said the commission "isn't ready to save our Democracy," saying the documents are "excessively evenhanded in their tone and fail to meet the urgency of the moment."

"The impetus behind the commission was not theoretical claims of injustice. Democrats called for the report because of the very real prospect that Republican rule will harden against the will of a majority of Americans," Jones said. "And Republicans’ successful attempt to seize power is having a real impact on the court’s legitimacy, whether the commission wishes to acknowledge it or not. The Supreme Court’s approval rating has dipped to 40 percent, according to a Gallup poll from September.

"Instead, the commissioners proposed 18-year term limits for Supreme Court justices, and they suggested the court could be expanded over time rather than all at once," he wrote. "All of that sounds great in theory, but the Supreme Court is an institution making decisions that have real, disastrous impact right now. Contrary to the commission’s findings, many Americans can’t afford to wait for Supreme Court reform in years to come. The change is needed now."

In Slate, Dahlia Lithwick and Mark Joseph Stern said the commission "walked straight into the legitimacy trap."

"After six months of gathering facts and evidence, taking testimony, and mulling reform ideas, the commission declares that it is neither offering recommendations about fixing the courts nor proposing a specific path forward," they wrote. "One problem: In so doing, the commission is actually proposing a specific path forward — the one we are already on. The commission seems to frame the status quo as the reasonable choice and all alternatives as dangerous deviations. Their perspective is hardly a surprise... the commission’s draft starts and ends with the proposition that preserving the court’s public legitimacy is the only goal. By definition, any course of action disrupts that. By definition then, shoring up public confidence requires blinkering oneself to a decades long program of capturing the court for conservatives who were unable to capture governing majorities. That story is well-known. Sen. Mitch McConnell boasts about it. Donald Trump never tires of bragging about it. Nobody disputes that this was the conservative legal movement’s strategy or that they succeeded.

"To recap: During the six months that this commission has been preparing its draft report, the current Supreme Court made it harder for minorities to challenge racist voter suppression laws, harder for unions to organize, and harder to learn who is contributing funds to political groups," they concluded. "It has changed the law of religious liberty through the shadow docket. It has also, in case you missed it, allowed approximately 10 percent of American women of childbearing age to lose their constitutional right to abortion in September."


What the right is saying.

The right is celebrating the commission's initial report while criticizing its existence in the first place.

In The National Review, Dan McLaughlin said the commission is trying to have it both ways.

“Joe Biden’s Presidential Commission on the Supreme Court of the United States exists solely for reasons of cynical political strategy," McLaughlin said. "During the heat of the 2020 presidential campaign, Biden promised that if elected, he would study proposals to pack the Supreme Court. He did so as a dodge: endorsing Court-packing would be radical, unpopular, and inconsistent with his own strongly stated prior positions. But foreclosing the issue would depress progressive activists; it would also deprive Biden of a weapon with which to threaten the Court in order to intimidate the justices from standing impartially for the rule of written law. What the commission says or does is therefore far less important than the very fact that it exists.

"Looking specifically at the draft report on 'Membership and Size of the Court,' it is apparent that even a committee hand-picked by a Democratic administration to keep the door open for Court-packing nonetheless recognizes that such a proposal is too radical and unpopular to embrace openly," he wrote. "Yet while there is considerable ammunition here for opponents of Court-packing, the commission refuses to recommend against it. Its aim is to bury the issue in sludge, keeping options open for future proposals without giving soundbites to Republican candidates in 2022 and 2024. However sincere and diligent some of the commission’s members may be, their selection was designed to produce this sort of outcome."

In The Hill, Jeremy Dys said the "36-member panel reached the same conclusion as did President Biden, current and former justices including Ruth Bader Ginsburg, and elected officials who declined to join the left-wing fringe."

"Expanding the Supreme Court from nine justices to 13 or more to clear the way for a political agenda 'would reinforce the notion that judges are partisan actors' and would undermine the 'perception' of judicial independence, the commission said in its report. What’s more, the commission pointed out that striving for an ideological balance on the court was a fool’s errand when no such balancing act exists in Congress or the White House. That’s a matter of election outcomes.

"Many progressives want to pack the court with friendly jurists in a naked grab for political power," he wrote. "Their goal, in the words of Senate Majority Leader Chuck Schumer (D-NY), is to 'change America.' The change they seek would destroy the system of checks and balances that the Founders endowed us with and destroy the independence of the judiciary. That could destroy the civil liberties of all Americans. Those who hold political power under such a regime would be the sole interpreters of the Constitution. Americans would face enormous pressure to conform to government edicts."

In The Washington Post, James Harvie Wilkinson III, a judge in the U.S. Court of Appeals for the 4th Circuit, said Supreme Court term limits wouldn't solve anything.

"Imposing term limits on Supreme Court justices is a terrible idea that threatens to become more popular by the day," Wilkinson said. "The latest support for this misguided change comes from President Biden’s Commission on the Supreme Court, which on Thursday released a draft expressing sympathy for the idea of doing away with lifetime tenure, noting backing for that change across the ideological spectrum... Eighteen-year terms, however spaced and staggered, will cure none of the faults and only exacerbate the weaknesses that critics perceive in the modern court. They will make the institution appear more, not less, political in the eyes of the public. Confirmation battles will become more numerous but no less feverish, because 18 years is long enough to inflame partisan confirmation passions, especially if the court is closely divided.

"The change would leave the court shorthanded too often, if confirmation delays set in," he added. "That risks leaving the court with an even number of eight members, hardly an ideal composition for any institution predicated on majority rule. And the certainty that a seat will become vacant when the clock chimes the magical hour will only make the court the subject of more continuing political parlor talk than it is already. It is easy to imagine the strategic games the justices may be tempted to engage in, smuggling through such-and-such a precedent — or overruling it — before so-and-so leaves the bench. While the proponents of term limits envision a smooth and orderly opening of vacancies, what happens when a justice dies or strategically retires before the expiration of his or her term?”


My take.

Through much of Biden's early presidency, I’ve expressed surprise at how not-in-the-middle he has been. His words, priorities, and legislative agenda have been more progressive than I thought they would be during his campaign — and closer to the progressive wing of the party than the moderate lane many pundits believed he'd operate in a year ago. But on the issue of the Supreme Court, this outcome was always obvious.

Biden was never going to expand the court. "No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day," he said during the campaign. It was clear as day, until it became clear to Biden that some progressives might abandon him if he didn't at least consider it. Then he made it clear by what he didn't say, by who he put on this commission, and with the fact that the commission existed at all. If you wanted to draft up a way to kill a longshot idea like "expanding the court," creating a commission of ideologically diverse lawyers to research it is probably the best way to get the job done. Progressives who were disappointed by the substance of the report simply weren't paying attention when much of this was obvious six months ago.

In April, I wrote that progressives didn't have a prayer of expanding the court. It was true then and is true now. I also said that they did have the legal authority, which, with little fanfare, the commissioners actually confirmed. There are ways to expand the court that makes it a less dangerous idea — like slowly adding pairs of justices over a decade, so neither party can use the court's expansion for an overt power grab. But it's hard to imagine this going down without the political equivalent of a nuclear bomb going off, even if Democrats could somehow get the votes to change the law to make it happen (which, again, they can't).

Given that I have written supportively about term limits, specifically The Washington Post-endorsed 18-year limits for justices, I was interested to see the commission's far more favorable analysis of that proposal, as well as Wilkinson's rebuttal. My biggest grievances with the Supreme Court are unchanged: 1) Its justices are increasingly holding onto their seats for as long as possible, often until death, and usually in an effort to prevent their seat from being filled by the “opposition” party. 2) Because of a largely dysfunctional Congress, the Court has become critical to the implementation of our laws, often settling legislative disputes that spring from a sharply divided Congress. 3) Its composition today is far more about luck and partisan maneuvering than it is about a representative government nominating and confirming justices.

Wilkinson argued that term limits will create more cycles of vacancies, leaving the potential for the court to more frequently be at a 4-4 deadlock and unable to rule on anything. But that ignores two obvious facts: 1) The court would have to be perfectly split ideologically for that to matter (it isn't right now), and 2) We run into the same issues already when justices die or when Republicans refuse to vote on a nominee.

Wilkinson also raises concerns about justices overruling certain precedents before their term ends or retiring strategically when their favored political party is in power, ignoring the fact that this is exactly how things work right now. Finally, he raises the spectre of judges in other countries, subject to bribery and intimidation, who have come to think of the Supreme Court's lifetime terms as an ideal means to judicial independence, without offering any evidence as to how an 18-year-term would encourage less ethical behavior from justices.

In short, the commission did exactly what it was expected to do. It threw cold water on court packing and slow-rolled stronger reform ideas like term limits. In the end, all the public meetings, lawyer-haranguing and 200-page documents aren't going to change the court. Only public willpower and an act of Congress can do that.


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Your questions, answered.

Q: In a recent Tangle edition, I wrote that Kyrsten Sinema (D-AZ), "has been nearly impossible to reach as a legislator," which prompted a reader to ask: The protestors have used that as a talking point, but how do you quantify that assertion? What data proves (or disproves) her level of accessibility relative to other Senators? I'm curious if there are metrics to track accessibility and by extension what can be learned about how accessibility correlates with policy and legislative priorities.

— RJ, Bronxville, NY

Tangle: It's a very tough thing to quantify. But a lot of it comes from stories by local reporters in Arizona and the Town Hall Project, which tracks politicians while advocating for them to interact more often with their constituents. This Arizona Central story was linked to in Tangle when I made this claim, which was pre-pandemic. The story notes that by August of 2019, Sinema (and Sen. Martha McSally, the Arizona Republican) had not yet held a single town hall that year, nor had they scheduled one, nor could they tell the press when they might hold one.

Many members of Congress signed a town hall pledge, committing them to four town halls a year, but Sinema did not. It looks like she held one virtual town hall in May of 2020, something that became very popular among members of Congress during the pandemic, but the Town Hall Project doesn't list any other events from her recently, or show any being planned in the future.

That being said, this is an admittedly imperfect way of measuring this. For one, the Town Hall Project is volunteer-based and aggregating reports from across the country. Two, town halls aren't the only ways to meet with constituents. In fact, one Tangle reader replied to me and said they had actually had a rather easy time getting a hold of Sinema's office in 2020 to raise an issue that mattered to them. So much of the impression about Sinema — and the reason I included it — is a combination of these crowdsourced tracking tools, reports from local news outlets, and citizen complaints.

In Sinema's case, it also doesn't help when you take off for a fundraiser in Europe or leave D.C. and attend a fundraiser in Arizona while the negotiations you've been calling for are happening in Congress. That sort of thing only exacerbates the perception that you're not "doing your job," which many view as drafting legislation and interacting with citizens.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Labor activism is ramping up across the U.S. as workers embrace newfound leverage and power in an economy that is short on labor. A record 4.3 million Americans quit their jobs in August alone, and hundreds of thousands of workers have followed that up by digging their heels in on grievances about wages, quality of life and lack of benefits. 10,000 John Deere workers are on strike. 31,000 Kaiser employees had an authorized walkout. 60,000 Hollywood production workers just struck a deal Saturday night with the threat of a strike on Monday looming in the background. There have been strikes against 178 employers this year, according to a tracker created at Cornell University. The Washington Post has the story.


Numbers.

  • 63%. The percentage of Americans who want to end lifetime appointments to the Supreme Court.
  • 22%. The percentage of Americans who oppose any term limits on Supreme Court justices.
  • 38%. The percentage of Americans who would support expanding the court by adding four justices.
  • 44%. The percentage of Americans who would oppose expanding the court by adding four justices.
  • 80%. The percentage of Americans who now live in urban areas.
  • 64%. The percentage of Americans living in urban areas in 1950.


Have a nice day.

The leader of Myanmar's military junta said it will release 5,636 jailed prisoners who were imprisoned for protesting a coup that ousted the civilian government. Min Aung Hlaing said he would free the protesters on October 20 as part of a national festival. The junta chief said he was committed to peace and reinstating democracy (color me skeptical) after he was excluded from a summit with the Association of South East Asian Nationals (ASEAN). Millions of people protested in the streets after the coup, resulting in 1,170 protesters being killed in the streets. The announcement marks the first release of political prisoners since the junta seized power in a February 1 coup. The New York Times has the story.


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Isaac Saul

I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.

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