This spring, President Biden appointed a 35-member Presidential Commission on the Supreme Court of the United States, charged with soliciting expert views, deliberating among themselves, and reporting back to him on the subject of “reforming” the nation’s highest court. The commission’s members are themselves mostly eminent scholars of the Court’s work, preponderantly but by no means exclusively liberal ones. In their two public meetings so far (via Zoom), the members have taken written and oral testimony from 45 witnesses – also various eminences of the bar and the professoriate, and also mostly liberals.
Under the Constitution’s Article III, the Supreme Court and such other courts as Congress may create are granted “the judicial power,” understood to be the adjudication of contesting parties’ rights and duties, wrongs and remedies, according to the rule of law.
Is there a crisis of public confidence in the Supreme Court, such that its “legitimacy” as an institution is threatened? Inasmuch as the Court continues – as usual – to outpoll presidents and Congress in public approval ratings, it would not appear so. (It won’t do, however, to inquire too closely into what the public actually knows about the Court’s work.) The impetus for the Biden administration’s commission appears to have been to placate Democratic Party elites who are in a panic over the fact that President Donald Trump was able, in his single term, to appoint three Supreme Court justices – Neil Gorsuch to succeed Antonin Scalia, a conservative; Brett Kavanaugh to succeed Anthony Kennedy, a “swing” justice, sometimes conservative, sometimes liberal; and Amy Coney Barrett to succeed Ruth Bader Ginsburg, a liberal. For the party elites fixated on the Court’s composition, it’s time to “pack” the Court by expanding the number of seats and filling those new seats with liberal justices while Biden is president.
