It’s awful
NeverTrumper Tim Miller has some interesting thoughts on Supreme Court reform:
How Normal Is This Court, Really: A Meditation From a Conflicted Man
People on the right bristled at a frank comment from President Joe Biden as he exited a press conference last Thursday: “This is not a normal Court,” he said. In their view, this was an example of Biden betraying his promise to be a steward of our norms and institutions and taking an unnecessary swipe at a SCOTUS that has executed constitutionally sound, conservative jurisprudence.
Here’s a version of this position that was posted by an pseudonymous anti-Trump conservative I follow on Twitter:
Supreme Court rules against racial discrimination in college admissions. A position supported by an overwhelming majority of Americans. Biden responds by questioning the normalcy of the court. This is not a normal President.
Preparing for today and tomorrow has been the whole point of the recent campaign to try to undermine the legitimacy of the court majority. They cannot defend their legal positions so instead they do this and we get deafening silence from much of the norms crowd.
I assume we at The Bulwark are part of the “norms” crowd he is referring to, and while I don’t speak for everyone here, my view is that critiques of this Court and discussions of reform are totally legitimate and within the bounds of standard political discourse.
For starters, the size of the Supreme Court has changed several times before; the current number of justices was not set out on stone tablets delivered from on high. Lifetime appointments are written in the Constitution, but they’re opposed by a majority of Americans. Norms-abiding Republican legal luminaries like Don Ayer have expressed openness to adding more justices to the high court.
Personally, I think there would be value in hearing all kinds of different arguments for how we might best redesign the system so that every SCOTUS appointment doesn’t turn into a partisan deathmatch where fundamental rights hang in the balance. To the extent that “normal” people think about this issue at all, I suspect this kind of openmindedness is pretty typical.
These kinds of conversations make even more sense when you put the Democratic agita over the current Court into a fuller context. The reality is the GOP stole a Supreme Court seat. That might sound overwrought, but if you strip away all the talking points and all the bullshit, it becomes clear that in any fair system, either Merrick Garland should have the Gorsuch seat or a Biden appointee should have the Barrett seat. The situations were exactly the same, and the McConnell Senate blocked one appointee while jamming through another. The fact that they did it without even having majority popular support adds to the distrust, as I’ve written about before.
If this were a situation where because of term limits the left could get another shot at one or both seats in 4 or 8 or 12 or, hell, even 20 years that would be one thing. But those were lifetime appointments of young judges. So if you are a conservative who thinks Cocaine Mitch deserves praise for the extreme lengths he went to to take those seats, then you can’t clutch your pearls when the left looks at ways—within the Constitution and the law—to try to balance the playing field.
But despite all the reasons a person who values institutions might sincerely think the Court would benefit from some reforms, there is one prominent institutionalist who disagrees: President Biden!
That’s right. He might have made a little jab about the Court’s normalcy in the wake of a decision he found disappointing. But then he went on Nicolle Wallace’s show and said he opposes reforms because he worries it will politicize the Court in a way that isn’t fixable. Here’s Biden: “I put together a group of constitutional scholars to try to expand the Court . . . [and] the judgment was, ‘That doesn’t make sense because it can become so politicized in the future.’”
On the one hand, I’m not sure that’s right. Our current system might be hopelessly politicized already, and the Court is partly responsible. Moreover, it’s hard to say that expanding the Court, if it could be accomplished, would exacerbate the ills of our politics; predicting the downstream effects of changes like that is a fool’s errand.
But there’s something to be said for Biden’s argument. As imperfect and enraging as some of the present Court’s decisions have been, the Trump appointees have demonstrated a willingness to buck GOP partisans desires on some cases touching major issues like LGBT rights, immigration, and, most importantly, democracy/voting rights.
Given all that, maybe the best long-term answer to the problem presented by the Court’s current 6-3 conservabloc is to follow Biden’s lead and ride it out, let elections take care of themselves, and hope that with John Roberts’s pseudo-moderateness and the possibility of a Democratic president replacing SCOTUS’s oldest current member, there might be a path away from the extremes. Or maybe that’s naïve wishcasting and more dramatic action is called for.
But regardless of whether Biden is right about Court reform, the unmistakable reality is that he is the only one acting with even a modicum of proportionality in the debate. He is trying to do right by SCOTUS even after they ruled against him on a series of major issues! I don’t even need to ask, but: Can anyone imagine Trump doing that? In fact, of all the leading players in American political life right now—McConnell, Trump, DeSantis, McCarthy—it is Biden who has by far shown the most willingness to sacrifice partisan gains for the sake of protecting democratic institutions including the Court.
In spite of his good intentions and continued norms-loving rectitude, he finds himself in the sour spot on this issue: upsetting progressives who want more radical action faster, and catching heat from the dwindling number of reasonable Republicans for being “divisive” even as he resists those on his left flank who want to rebalance a court that the right went to extreme lengths to stack in their favor.
Maybe staring every day at a big painting of Franklin Roosevelt in the Oval Office reminds Biden that this is the sort of issue that can almost sink a presidency.
It did almost sink a presidency — but it also had the effect of moderating the court. I’m not sure that would happen with the collection of corrupt wingnut weirdos and theocrats that make up the current majority but I suppose you never know.
Biden is an institutionalist for better or worse. But Miller is right to condemn those Never Trump conservative lawyers for criticizing him when he’s the guy who is actually taking his lumps from the court and accepting his fate. These guys like what the court is doing and they don’t care that Mitch stole the majority from the Democrats to get it. So are they really the great believers in norms they pretend to be or is it just that Trump is an embarrassing buffoon and they want to replace him with someone a bit less personally repugnant?