A missed chance to promote independent judiciary

FFRF is disheartened over the do-nothing preliminary findings of President Biden’s commission tasked with looking at expansion of the Supreme Court.

The Presidential Commission on the Supreme Court of the United States, consisting of 36 legal scholars, lawyers and former federal judges, was created only to study the problem. But its draft materials have hid behind that tepid mandate and engaged in a craven attempt to please everyone — especially the court being examined. The draft is weak and utterly fails to recognize the critical problem the court presents. The commission’s bias against court expansion seems based in part on what it has said is a lack of public support, plus an exaggerated fear of unchecked growth in Supreme Court seats and the puzzling assumption that it might “reinforce the notion that the justices are partisan actors.”

The high court is already stacked with six partisan actors, including a third appointed by former President Trump using an extremist litmus test. Two of the Supreme Court seats were “stolen” by then-Senate Majority Leader Mitch McConnell, who refused to schedule hearings for Merrick Garland, nominated by President Obama with 11 months left in his term. McConnell effectively reduced the size of the Supreme Court that year by fiat and then hypocritically fast-tracked the appointment of Amy Coney Barrett in the very midst of the ongoing national election, a mere 30 days after she was nominated by Trump in September 2020.

FFRF has endorsed expansion of the entire federal judiciary — from the U.S. Supreme Court all the way down. Reps. Mondaire Jones, D-N.Y., Judiciary Chair Jerry Nadler, D-N.Y., and Hank Johnson, D-Ga., co-sponsored a bill calling for the addition of four seats to the Supreme Court. The case for high court expansion includes the fact that the number of justices on the high court was historically tied to the number of circuit courts of appeals — and there are now 13 such circuits. The expansion of lower courts, woefully understaffed, shouldn’t even be considered controversial.

Laurence Tribe, a constitutional law scholar and Professor Emeritus at Harvard University, was a member of the commission.

“Many people, and I include myself in this, believe we are indeed in a break-the-glass moment,” Tribe writes. “A moment when we cannot simply treat disagreement about particular trends of decision as matters of more or less, but a moment . . . where we may be on an irreversible path, a kind of one-way ratchet in which a series of decisions suppressing voting rights, saying the courts are powerless to deal with gerrymandering, eliminating the preclearance provision of the Voting Rights Act, then gutting what is left of the Voting Rights Act . . . the combined effect is to endanger the survival of self-government.

“For those who believe the course is profoundly misguided, to say the only clearly constitutional path is blocked is essentially to say stop worrying about the court. For this report to send that message, when one believes the opposite, would be a profound mistake.”

Although the final commission report will come down in mid-November, it seems foregone that it will be a wasted and missed opportunity to safeguard an independent judiciary — a debacle that will haunt our republic. Watch out.