Biden court commission appointees: We told you about court expansion
Former U.S. District Judge Nancy Gertner, who served on Biden’s commission, said in an interview that the court’s decision to overturn Roe vs. Wadea New York law that restricted open carry and the Environmental Protection Agency’s ability to regulate carbon emissions confirmed his belief that more seats should be added to the nine-member body.
“It was a place of solidity and rational discourse. That’s really not the case anymore,” Gertner said of the Supreme Court. “It’s really a set of decisions that they’ve made just because they can. And it’s pure exercise of power, not legal reasoning.
When Gertner first joined the Administration Committee, her reverence for the High Court made her resistant to bigger changes like expansion. Instead, she thought modest structural reforms, like term limits, would help. That changed after hearing testimony from experts who believed seats should be added to the court.
While Gertner eventually went along with the idea, other members of the commission did not. Their final report included endorsements for new codes of conduct and greater court transparency. He avoided endorsing topics such as expansion and term limits.
Six months later, Gertner thinks she’s got it right.
“This is nonsense. Of course there’s something we should do,” she said. “When you read the draft…and then you saw the court do what they wanted to do. I changed.”
Gertner’s plea for the expansion of the courts in the wake of the recent rulings opens a window into the growing pressure Biden currently faces. A growing number of voices on the left now say the Biden administration has grossly underestimated the problems presented by the conservative court — not just as a matter of case law, but as a matter of democratic governance itself. Gertner describes herself as “deeply frustrated” with the president for not rising to meet the moment. And she is not alone.
“His admiration for the court as an institution was overtaken by reality. And I think it’s time to wake up,” said Laurence Tribe, a Harvard law professor, member of the commission and someone who has advised the Biden White House on legal matters. “It was the court itself that uninhibitedly embarked on a sort of highly militant, agenda-driven, right-wing ideological jihad.”
White House aides and allies reject the idea that Biden isn’t enlivened enough by the court’s right turn. They point to his immediate and multiple rebukes of the court’s decision to overturn Roe as evidence of his concern and argue they’re damned if they do, damned if they don’t on these sorts of issues – noting days of denials they received from Republicans and members of their own party after Biden sharply criticized GOP lawmakers for restricting voting rights in a speech in Georgia earlier this year.
Yet they downplay the idea that court expansion is the answer, portraying it as a kind of popular left-leaning political fanfic but with no roots in governmental realities.
“The president blasted the court’s decision in Dobbs attacking Americans’ most personal rights as ‘extremist’, ‘outrageous’ and ‘awful’ and took swift action while warning against a nationwide ban on the abortion congressional Republicans seek,” the White House press aide said. said Secretary Andrew Bates, noting that Biden has also criticized High Court rulings on gun control and environmental regulations.
“He is candid with the American people, expressing their greatest concerns, and leading the way in protecting their rights and the finances of middle-class families,” Bates added.
When Biden appointed his Judiciary Committee, it was largely in response to left-wing agitation over Donald Trump’s appointment of three judges, including one – Amy Coney Barrett – just before the 2020 election. Former White House attorney Bob Bauer and Yale law professor Cristina Rodríguez, it included 36 members and spanned the entire ideological spectrum. The 294-page report he submitted ultimately produced little fanfare, reading more like an academic analysis of the court’s structure than a political roadmap for reforms.
Biden’s critics say they didn’t then and don’t imagine him now outwardly embracing court expansion. But they also want him to stop taking it off the table and criticize the court with more force and consistency.
“If you’re in some kind of theoretical game situation with an opponent who starts acting in bad faith, what do you do? Do you continue to follow the rules and hope that this will encourage them to return to the norms? Or do you fight back in a tit for tat way and so hopefully incite [them] return to traditional norms? Michael Klarman, a Harvard law professor who testified before Biden’s Judiciary Committee, said in an interview.
“I think you’re a fool not to do what you can to try to protect the system,” Klarman added, calling Biden “hopelessly naïve” for opposing the court’s expansion.
White House aides acknowledge that Biden’s belief in the need for enduring institutions comes at the cost of embracing more aggressive reforms. And they don’t see him changing, having both chaired the Senate Judiciary Committee and led on a platform that was about bipartisanship, not revolution. Aides say Biden also doesn’t want to start a different kind of tit for tat with Republicans that leads to each side adding more seats.
Americans themselves remain divided on the idea of expanding the yard. In a recent POLITICO/Morning Consult poll conducted after deer was canceled, 45% of voters are in favor of increasing the number of judges, including 64% Democrats. But operatives working on the issue say there would be more momentum — at least on the left — if Biden didn’t put a stop to the idea.
“Why does Joe Biden see it as his job to keep the public confident in a court that is working completely to thwart his agenda?” said Brian Fallon, executive director of the court reform group, Demand Justice. “He is not ready to approve it. [But] why demotivate his people who are passionate and upset at that time? Why not leave some fear in the minds of the Republican judges on the court about what he might support once he takes office? Why not scare Mitch McConnell a little about what he might be?
But some Democrats and White House allies caution against spending limited political capital on something that still lacks majority support from Democrats in Congress.
“If you put all the rhetorical and political pressure behind something that you know won’t pass this Congress, like expanding the courts, then you’ve squandered the opportunity to do all that can and should be done. now,” said Ben LaBolt, a longtime Democratic strategist who was brought in to help spearhead Ketanji Brown Jackson’s Supreme Court nomination.
Democrats and Reformers have credited Biden with passing an exclusion in the filibuster to codify deer, although Democrats do not have the votes to do so. And others have argued that Biden’s approach has proven politically effective, pointing to the 2020 campaign as proof that taking advice from the left was not a priority during the campaign and that’s not not the case now.
“The president is making it clear to the public that the choice is between legislation to protect the most deeply personal constitutional liberties or a nationwide ban that further deprives Americans of their freedoms,” a Biden ally said. “[A]Adding justices—whose even the strongest advocates cannot reach the level of Congressional support—would divert attention from the only essential avenue for Roe’s restoration, which is Congressional action once we have enough voice. It’s focused on getting results in real life — not the Twitterverse.