The Hill
Biden may face midterm reckoning on Supreme Court reform
Samuel Moyn, American Historian December 25, 2021
President Biden has largely managed to avoid the fray of the Supreme Court reform debate in his first year in office by outsourcing the issue to an expert study group. But his time on the sidelines may be running out.
Now that his court commission has wrapped up its work, and with a potentially explosive Supreme Court ruling on abortion expected this summer just months ahead of the midterms, Biden could soon find himself facing intense pressure from the left to take a bolder stance on reforming the 6-3 conservative majority court.
According to Samuel Moyn, a professor of jurisprudence and history at Yale University, the proposal that ranks as the current favorite among progressives involves expanding, or “packing,” the court with additional members. And if the justices curtail abortion access this term as many expect they will, he said, calls for court expansion may grow too loud for Biden to ignore.
“The growing support for court expansion – with more than 10 times as many lawmakers signing on as when the commission started its work – may begin to create a new political reality that Biden will have a hard time ignoring altogether,” Moyn said. “And everyone knows that if the Supreme Court overrules Roe v. Wade, Biden’s own party or a popular outcry may force him to act.”
As a candidate, Biden deflected the court reform discussion by pledging to establish a study commission. The move succeeded in buying him political cover at a moment of Democratic furor as the court shifted rightward amid what the party viewed as Republican duplicity.
Debate over the Supreme Court reached a fever pitch in the closing days of the 2020 presidential election as Senate Republicans scrambled to confirm then-President Trump’s third nominee, Amy Coney Barrett, ahead of the November vote.
The move infuriated Democrats, who in 2016 were denied a hearing for then-President Obama’s pick to replace the late Justice Antonin Scalia, Merrick Garland, when Republicans claimed that election year confirmations are improper – before appearing to violate that claim four years later.
Biden made good on his campaign pledge once he entered the White House, tapping a bipartisan group of some three dozen of the nation’s foremost constitutional thinkers and court watchers. The move once again allowed him to keep an arm’s length distance from an issue that ranks as a top priority among many liberals but has turned off some of his party’s more moderate members.
When the Biden-appointed court commission published in early December its nearly 300-page report, which weighed various proposals such as court expansion and term limits for justices, the endeavor drew a mixed response.
Rather than make specific recommendations, the 34-member group maintained a posture of neutrality, hewing to an accounting of pros and cons instead of advocating for a specific course of change.
To critics, it was confirmation of their suspicions that Biden’s commission was conceived of as a political dodge. Organizations pushing for bolder reforms expressed displeasure at what some derided as the commission’s uninspired result.
“It was clear from the moment President Joe Biden failed to ask the commission for recommendations that the group was not intended to meaningfully confront the Supreme Court legitimacy crisis,” wrote the Project On Government Oversight. “The commission worked diligently and thoughtfully, but its deliberations made painfully apparent that it would only give Biden what he asked for: a book report.”
Even some of the commission’s more progressive members felt it necessary to make clear that their endorsement of the final report carried the caveat that it was not an embrace of the high court’s status quo.
But others say the commission’s work, which included public hearings that drew attention to issues like the court’s flagging perception among the public, may yet deliver a shot in the arm for reform proponents.
“The commission’s public deliberations plausibly increased pressure for reform by giving visibility to individuals speaking up in favor of reform,” said Ryan Doerfler, a law professor at the University of Chicago.
Many experts believe the justices themselves could breathe new life into the court reform movement this term.
The justices are currently weighing decisions on a number of hot-button topics, from issues of church-state separation to the Second Amendment. But one case looms largest: a clash over a Mississippi abortion law that directly challenges Roe v. Wade.
Nothing could galvanize the reform push quite like a decision undermining or overturning the landmark 1973 decision in Roe that first recognized a constitutional right to abortion, according to experts.
Under Roe and the 1992 decision in Planned Parenthood v. Casey, states may regulate abortion up to the point of fetal viability, typically around 24 weeks, so long as the restriction does not pose an “undue burden” on abortion access. Mississippi’s law, which bans abortion after 15 weeks of pregnancy and makes exceptions only for medical emergencies or “severe fetal abnormality,” is a clear-cut violation of this framework, critics say.
Yet despite nearly five decades of precedent, many court watchers believe justices are poised to set tighter limits on the right to abortion. Experts say that could put the court in Democrats’ crosshairs just as Biden and Democratic leaders make their final pitch to midterm voters in hopes of clinging onto their now-tenuous control over Congress.
“I think if Roe and Casey are overruled, Court packing will be a major issue in the midterm elections,” said Scott Douglas Gerber, a law professor at Ohio Northern University.