Source: Politics<\/p>\n
Long before the Supreme Court rescinded abortion rights, gun control and environmental regulations, President Joe Biden commissioned a body of academics and judicial experts to study the structure and composition of the nation\u2019s high court.<\/p>\n
The recommendations issued by that bipartisan commission were moderate in scope, focusing on matters of transparency and ethics. Ultimately, they were brushed aside, ignored by a president largely resistant to large-scale reforms.<\/p>\n
Half a year later, some of the members who called for that bold action are saying, I told you so.<\/p>\n
Former U.S. District Judge Nancy Gertner, who served on Biden\u2019s commission, said in an interview that the court\u2019s striking down of Roe v. Wade, a New York law that restricted open carry, and the ability of the Environmental Protection Agency to regulate carbon emissions vindicated her belief that more seats should be added to the nine-member body.<\/p>\n
\u201cIt was a place of solidity and rational discourse. It really is not anymore,\u201d Gertner said of the Supreme Court. \u201cIt really is a set of decisions that they did only because they can. And that is an exercise of pure power, not legal reasoning.\u201d<\/p>\n
When Gertner initially joined the administration\u2019s commission, her reverence for the high court made her resistant to larger changes like expansion. Instead she believed modest structural reforms, like term limits, would be useful. That changed after she heard testimony from experts who believed that seats should be added to the court.<\/p>\n
While Gertner eventually came around to the idea, others on the commission didn\u2019t. Their final report<\/a> included endorsements for new codes of ethics and more court transparency. It steered clear of endorsing topics like expansion and term limits.<\/p>\n Six months later, Gertner believes she got it right.<\/p>\n \u201cThis is absurd. Of course, there’s something we should do,\u201d she said. \u201cWhen you read the draft … and then you watched as the court did whatever it wanted to do. I changed.\u201d<\/p>\n Gertner\u2019s advocacy for court expansion in the wake of the recent rulings provides a window into the mounting pressure that Biden currently faces. A growing number of voices on the left now say the Biden administration has deeply underappreciated the problems presented by the conservative court \u2014 not just as a matter of jurisprudence but as an issue of democratic governance itself. Gertner describes herself as \u201cdeeply frustrated\u201d with the president for not rising to meet the moment. And she\u2019s not alone.<\/p>\n \u201cHis admiration for the court as an institution has been overtaken by reality. And I think it’s time to wake up,\u201d said Harvard Law professor Laurence Tribe, a member of the commission and someone who has advised the Biden White House on legal matters. \u201cIt’s the court itself that has plunged ahead without any inhibition on a kind of highly activist, agenda driven, right-wing ideological jihad.\u201d<\/p>\n White House aides and allies reject the idea that Biden is not sufficiently animated about the court\u2019s rightward turn. They point to his immediate and multiple rebukes of the court\u2019s decision to overturn Roe as evidence of his alarm and argue they are damned if they do, damned if they don\u2019t on these types of matters \u2014 noting days of pushback they received from Republicans and members of their own party after Biden sharply criticized GOP lawmakers for curtailing voting rights in a speech in Georgia at the beginning of the year.<\/p>\n Still, they downplay the idea that court expansion is the answer, framing it as a type of political fanfic popular on the left but with no roots in governing realities.<\/p>\n \u201cThe president has blasted the court\u2019s decision in Dobbs attacking Americans\u2019 most personal rights as \u2018extremist,\u2019 \u2018outrageous,\u2019 and \u2018awful\u2019 and taken swift action while warning against the national abortion ban congressional Republicans are seeking,\u201d White House deputy press secretary Andrew Bates said, noting Biden also has criticized the high court\u2019s decisions on gun control and environmental regulation.<\/p>\n \u201cHe\u2019s being straight with the American people, giving voice to their biggest concerns, and leading the way on protecting their rights and middle class families\u2019 finances,\u201d Bates added.<\/p>\n When Biden appointed his court commission, it was largely in response to agitation on the left over the appointment of three justices by Donald Trump, including one \u2014 Amy Coney Barrett \u2014 right before the 2020 elections. Chaired by former White House Counsel Bob Bauer and Yale Law professor Cristina Rodr\u00edguez, it included 36 members and spanned the ideological spectrum. The 294-page report it submitted ultimately yielded little fanfare, reading more like an academic analysis of the court\u2019s structure than a political roadmap for reforms.<\/p>\n Biden\u2019s critics say they didn\u2019t then and don\u2019t imagine him now outwardly embracing court expansion. But they also want him to stop taking it off the table and to criticize the court more forcefully and consistently.<\/p>\n \u201cIf you’re in a kind of theoretical game situation with an opponent who begins acting in bad faith, what do you do? Do you continue to play by the rules and hope that will incentivize them to return to the norms? Or do you retaliate in a tit for tat way and thus hopefully incentivize [them] to go back to the traditional norms?\u201d Michael Klarman, a Harvard law professor who testified to Biden\u2019s court commission, said in an interview.<\/p>\n \u201cI think you’re a fool for not doing what’s in your power to try to protect the system,\u201d Klarman added, calling Biden \u201chopelessly na\u00efve\u201d for opposing court expansion.<\/p>\n White House aides acknowledge that Biden\u2019s belief in the need for enduring institutions comes at the cost of embracing more aggressive reforms. And they don\u2019t imagine him changing, having both chaired the Senate Judiciary Committee and run on a platform that was about bipartisanship, not a revolution. Aides say Biden also doesn\u2019t want to start a different type of tit for tat with Republicans that leads to each side adding more seats.<\/p>\n