Commentary

Biden’s SCOTUS commission is more symbol than substance | Fletcher McClellan

Presidential commissions usually pursue reform. This one stands out because it wants to stop major changes to the nation’s highest court

The U.S. Supreme Court in Washington D.C. (Flickr Commons)

For more than a century, U.S. presidents have appointed commissions to improve governmental effectiveness, examine emerging needs, and investigate disasters. Commissions also serve political purposes, such as highlighting presidential priorities, avoiding blame, and putting off a controversial topic until later.

Fletcher McClellan (Capital-Star file)

President Joe Biden’s Commission on the Supreme Court of the United States has similar characteristics, but one stands out: preventing major changes to the nation’s highest court.

The work of most presidential commissions is ignored or forgotten. The ones that are remembered, however, often come at crisis moments in American history. Furthermore, they issue recommendations that are sometimes at odds with the policies of the presidents who created them.

For example, President Lyndon Johnson appointed a commission chaired by Governor Otto Kerner (D-Ill.) to find out the causes of race riots in Northern cities and propose ways of preventing further violence. In early 1968, the National Advisory Commission on Civil Disorders issued a blistering report that linked unrest to the lack of economic opportunity for African-Americans.

Best known for its summation, “Our nation is moving toward two societies, one Black, one white—separate and unequal,” the Kerner Report placed responsibility for the deplorable conditions of Black America on white institutions and racist attitudes. The report called for racial desegregation of cities, massive federal investment in jobs, housing, and social services, and community policing.

With law-and-order developing as a major issue in the upcoming presidential election, the Kerner Commission’s findings were not to LBJ’s liking. He dismissed the commission without publicly thanking them.

Appointed to investigate two national tragedies, separate presidential commissions received opposite reactions from the public.

Just when Supreme Court reform is most needed, it is likely this presidential commission’s report will be deposited in the dustbin of history. Which may be where this president wants it to reside.

The Warren Commission’s conclusion that Lee Harvey Oswald was the lone assassin of President John F. Kennedy remains controversial to this day. On the other hand, the 9/11 Commission Report was widely praised for its compelling narrative, and many of its recommendations were adopted.

Another commission that produced policy change – not necessarily reflective of the president’s views – was the National Commission on Social Security Reform.

Established by an Act of Congress with President Ronald Reagan’s blessing in 1981, the Greenspan Commission, as it was called, gave political cover to Reagan, a well-known opponent of Social Security, by generating a rare product of bipartisanship, fiscal responsibility, and forward thinking to keep the program solvent.

Some commissions were created to succeed. Others were made to fail. The Biden commission on the Supreme Court appears to be an example of the latter.

The president’s executive order, which created the commission in April 2021, was born out of five years of Democratic outrage.

Whereas Senate GOP Leader Mitch McConnell, R-Ky., shut the door on President Barack Obama’s appointment of then-U.S. District Judge Merrick Garland to replace the late Justice Antonin Scalia seven months before the 2016 presidential election, he railroaded the approval of Justice Amy Coney Barrett just 38 days after the death of Justice Ruth Bader Ginsberg and eight days prior to Election Day 2020.

During Barrett’s confirmation process, Biden said he would appoint a commission to recommend Supreme Court reforms, but he was not interested in “court-packing,” or expanding the number of justices on the Court. Liberals accused Biden of punting on the issue.

So far, it seems that skepticism about Supreme Court reform is well-founded.

The first sign that the presidential commission would face difficulty was its size and composition – 36 constitutional scholars. Getting 30-plus people, let alone high-powered academics, to agree on anything is next to impossible.

Second, the members were chosen for their diversity of thought about constitutional interpretation and the role of the courts in a democracy. Several belong to the Federalist Society, an organization that provided Trump with the names of Barrett, Neil Gorsuch, and Brett Kavanaugh to send to the Senate. No prominent reform advocates were selected.

Third, the commission circulated draft materials last week from its discussions and the testimony supplied by nearly 100 witnesses. The commission indicated it was divided on expanding the Supreme Court. Such efforts could damage the legitimacy of the Court, according to the draft.

The commission reported greater agreement on term limits, a position Biden favors, but assuming the three Trump justices (who average 53 years old) are grandfathered, adoption of an 18-year limit will mostly curtail the service of Democratic justices.

The Court’s legitimacy is already damaged. Several justices spoke out recently, expressing their fear that the public might view them as “partisan hacks.” Public approval of the Supreme Court is down to 40%. This disturbing news arrives as the Court enters a term in which it is asked to overturn Roe v Wade, expand gun rights, and possibly end affirmative action.

Just when Supreme Court reform is most needed, it is likely this presidential commission’s report will be deposited in the dustbin of history. Which may be where this president wants it to reside.

Opinion contributor Fletcher McClellan is a political science professor at Elizabethtown College in Elizabethtown, Pa. His work appears biweekly on the Capital-Star’s Commentary Page. Readers may email him at  [email protected], and follow him on Twitter at @mcclelef.

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