Biden’s court commission appointees: We told you so on expanding the court

Last updated on July 7, 2022

Long before the Supreme Court rescinded abortion rights, gun control and environmental regulations, President Joe Biden commissioned a body of academics and judicial experts to study the structure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’s high court.

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.

Half a year later, some of the members who called for that bold action are saying, I told you so.

Former U.S. District Judge Nancy Gertner, who served on Biden’s commission, said in an interview that the court’s 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.

“It was a place of solidity and rational discourse. It really is not anymore,” Gertner said of the Supreme Court. “It really is a set of decisions that they did only because they can. And that is an exercise of pure power, not legal reasoning.”

When Gertner initially joined the administration’s 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.

While Gertner eventually came around to the idea, others on the commission didn’t. Their final report included endorsements for new codes of ethics and more court transparency. It steered clear of endorsing topics like expansion and term limits.

Six months later, Gertner believes she got it right.

“This is absurd. Of course, there’s something we should do,” she said. “When you read the draft … and then you watched as the court did whatever it wanted to do. I changed.”

Gertner’s 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 — not just as a matter of jurisprudence but as an issue of democratic governance itself. Gertner describes herself as “deeply frustrated” with the president for not rising to meet the moment. And she’s not alone.

“His admiration for the court as an institution has been overtaken by reality. And I think it’s time to wake up,” said Harvard Law professor Laurence Tribe, a member of the commission and someone who has advised the Biden White House on legal matters. “It’s the court itself that has plunged ahead without any inhibition on a kind of highly activist, agenda driven, right-wing ideological jihad.”

White House aides and allies reject the idea that Biden is not sufficiently animated about the court’s rightward turn. They point to his immediate and multiple rebukes of the court’s decision to overturn Roe as evidence of his alarm and argue they are damned if they do, damned if they don’t on these types of matters — 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.

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.

“The president has blasted the court’s decision in Dobbs attacking Americans’ most personal rights as ‘extremist,’ ‘outrageous,’ and ‘awful’ and taken swift action while warning against the national abortion ban congressional Republicans are seeking,” White House deputy press secretary Andrew Bates said, noting Biden also has criticized the high court’s decisions on gun control and environmental regulation.

“He’s being straight with the American people, giving voice to their biggest concerns, and leading the way on protecting their rights and middle class families’ finances,” Bates added.

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 — Amy Coney Barrett — right before the 2020 elections. Chaired by former White House Counsel Bob Bauer and Yale Law professor Cristina Rodríguez, 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’s structure than a political roadmap for reforms.

Biden’s critics say they didn’t then and don’t 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.

“If 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?” Michael Klarman, a Harvard law professor who testified to Biden’s court commission, said in an interview.

“I think you’re a fool for not doing what’s in your power to try to protect the system,” Klarman added, calling Biden “hopelessly naïve” for opposing court expansion.

White House aides acknowledge that Biden’s belief in the need for enduring institutions comes at the cost of embracing more aggressive reforms. And they don’t 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’t want to start a different type of tit for tat with Republicans that leads to each side adding more seats.

Americans themselves remain split on the idea of expanding the court. In a recent POLITICO/Morning Consult poll taken after Roe was overturned, 45 percent of voters are in favor of increasing the number of justices, including 64 percent of Democrats. But operatives working on the issue argue that there would be more momentum — at least on the left — if Biden didn’t put a damper on the idea.

“Why does Joe Biden consider it his job to keep the public having confidence in a court that is completely working to thwart his agenda?” said Brian Fallon, the executive director of court reform group, Demand Justice. “He’s not ready to endorse it. [But] why demotivate his people that are passionate and upset at that moment? Why not leave a little fear in the minds of the Republican justices on the court about what he might support once he gets into office? Why not put a little fear into Mitch McConnell about what he might be for?”

But some Democrats and allies of the White House, caution against spending scarce political capital on something that still doesn’t have majority support of Democrats in Congress.

“If you put all the rhetorical and political pressure behind something that you know is not going to pass this Congress, such as court expansion then you’ve passed on the opportunity to do all of the things that that can and must be done now,” said Ben LaBolt, a longtime Democratic strategist who was brought in to help shepherd the Supreme Court nomination of Ketanji Brown Jackson.

Democrats and reformists did credit Biden for embracing a carve out in the filibuster to codify Roe, despite Democrats not having the votes to do so. And others made the point that Biden’s approach is one shown to be politically effective, pointing to the 2020 campaign as proof that taking advice from the left was not at top of mind during the campaign and it isn’t now.

“The president is being straight with the public that the choice is between legislation to protect the most deeply personal constitutional freedoms or a national ban that further deprives Americans of their freedoms,” a Biden ally said. “[A]dding justices — which even the strongest advocates for can’t ballpark the support level of in Congress — would distract from the only path that is essential to restoring Roe, which is congressional action once we have enough votes. He’s focused on delivering results in real life — not the Twitterverse.”