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Andrew L. Seidel, constitutional lawyer and author, is the director of strategic response at the Freedom From Religion Foundation. This column was produced for The Progressive magazine and distributed by Tribune News Service.
A lukewarm new report from Joe Biden’s presidential commission on the Supreme Court failed to adopt the best solution – adding seats to the court to counter years of judicial tampering.
The report, which commissioners voted unanimously to approve on December 7, cited “deep disagreement over whether expanding the courts at that time would be wise.” He decided to simply present the arguments for and against, rather than “judging the weight of one of the arguments” or taking a “position on the wisdom of expansion”.
The report also states that the enlargement of the court “would almost certainly undermine or destroy the legitimacy of the Supreme Court” and would be seen as “a dangerous takeover by a political party”, not to mention that it has already happened.
Part of it is Biden’s failure. The commission was empowered to report on court reform, not to make recommendations. However, the United States faces a problem, not a question. It’s clear what to do with our captured Supreme Court. The problem is to appeal to the will to do it.
Former Senate Majority Leader Mitch McConnell stole two Supreme Court seats and Donald Trump, as president, outsourced judicial choices to an obscure network of organizations led by the Federalist Society. The judges were selected for their loyalty to conservative and Christian nationalist ideology, not for their skill and discernment – and certainly not for their experience.
McConnell and Trump did not steal those seats because they wanted to put thoughtful, impartial and non-partisan judges on the bench for life; they stole them to induct partisan activists who would overthrow Roe v. Wade, would destroy the revered “Church-State Separation Wall” and tick every other box on the Conservatives’ wishlist.
The current court is so extreme that Judge Brett Kavanaugh, one of the country’s most conservative jurists, is now the ideological center of the court.
Our failure to expand the court allowed five conservative judges to overturn some public health orders amid a deadly pandemic in the name of religious freedom. It ignored eight decades of precedent and led to the preventable deaths of many Americans.
We will not be able to tackle the climate crisis either if we do not extend the tribunal. Reproductive rights are gone unless we expand the court. And it will be the same for contraception and equality in marriage.
That’s because every progressive plan, every public health ordinance, every vaccination warrant, every abortion ban, every voter identification law, anything can be brought before this Supreme Court – one body captured and smashed. Judges have life appointments and the power to send us back to the Dark Ages. Fixing the court is all that matters. And that is why the commission’s report is so inadequate.
The composition of the commission seems to have compromised its objective. Christopher Kang, who led the judicial choices for the Obama White House, puts it this way: “You wouldn’t have a commission on climate change with climate skeptics. Here we have a Supreme Court commission with people who don’t think the Supreme Court is broken. “
The incentives were for commissioners to align with the status quo and refrain from deep and thoughtful institutional criticism. Harvard Law School professor Nikolas Bowie told commissioners: “I think our commitment to democracy requires us to be honest about the damage done by our Supreme Court as an institution.
Our commitment to democracy requires this honesty, and the commission failed to respect this duty. The Supreme Court must be expanded now, even if the commission is too timid to ask for it.