That’s exactly what’s happening these days when it comes to the debate over whether the Supreme Court should be expanded from its current nine seats as a way to offset the 6-3 conservative majority on the court, cemented by former President Donald Trump’s three appointments over the course of his four-year term.
On Thursday, a handful of Democratic senators and House members will introduce legislation that would add four seats to the court. “Our democracy is under assault, and the Supreme Court has dealt the sharpest blows,” tweeted New York Rep. Mondaire Jones, one of the co-sponsors of the legislation. “To restore power to the people, we must #ExpandTheCourt.”
That move comes just a week after President Joe Biden signed an executive order establishing a commission to study whether the nation’s highest court should be expanded. “The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” reads the EO, adding: “This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.”
At first glance, you might be tempted to think that Things. Are. Happening.
The Democratic establishment listened to its liberal wing during the 2020 campaign and is reacting to blunt the clear advantage on the court that Trump, with a major assist from Sen. Mitch McConnell of Kentucky, established over the last four years!
What’s happening in Washington in regard to changing the makeup of the court is sound and fury signifying not all that much (with apologies to William Faulkner).
Let’s start with the legislation being introduced in Congress on Thursday.
There’s a BIG difference between introducing a bill, which any member of Congress can do at virtually any time, and that piece of legislation having any realistic chance of passing. This court expansion bill is the former, not the latter.
“I’m not yet convinced the court needs to be expanded,” Virginia Sen. Tim Kaine (D) told CNN’s Manu Raju on Thursday. Ditto Illinois Sen. Dick Durbin: “I’m not ready to sign on.”
There’s zero chance that the court expansion bill could garner the 60 votes it would need to end debate on the measure and set up a final vote on passage. Heck, the bill wouldn’t even come close to getting 50 votes right now — as evidenced by comments like Kaine and Durbin, who aren’t exactly the two most conservative members of the Democratic caucus.
It’s not at all clear that the bill could even pass the House where a) majority rules and b) Democrats have the majority. With a series of vacancies — and Republicans’ double-digit seat gain in the 2020 election — the Democratic majority is extremely thin, meaning Speaker Nancy Pelosi (California) could afford to lose very few votes if she wanted to shepherd the court expansion to passage. (It’s not at all clear whether she wants to prioritize this piece of legislation.)
Then there’s the Biden court committee, which is far less than initially meets the eye.
Why? Well, the long-running joke in Washington is that if the president wants to look like he is doing something while actually not doing much, the commission or committee is the preferred vehicle to make that happen. Because it makes it look like the politician is acting — he’s forming a commission!!! — while what he is really doing is kicking the can way, way down the road when, he hopes, passions will be less inflamed.
This mission of this 36-member commission speaks to the desire to look like something decisive is being done while, well, it’s actually not. (Sidebar: How often have you ever seen 36 people all agree on the right way to solve a politically thorny problem? Yeah, me too.)
“It’s not about court-packing,” Biden said in early April when asked about the commission idea. “There’s a number of other things that our constitutional scholars have debated. … The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.”
And as CNN’s Supreme Court wiz Joan Biskupic wrote of the commission: “The commission is expected to begin holding public hearings in upcoming weeks and report back to the President in six months, after sizing up options.”
So, the committee’s goal isn’t to offer a specific guideline about court expansion. Or even focus solely on court expansion. Which means that the ultimate recommendations — when they come sometime in late 2021 (or early 2022) will likely be overly broad and filled with caveats. Which isn’t likely to create pressure on Biden (or Congress) to make a change.
In short: There’s a reason that the composition of the seats on the court hasn’t changed since 1869 — and why 2021 isn’t going to be the year it happens.