OPINION:
After more than six months of meetings and hundreds of pages of report documents, the Constitution has proven too much for President Biden’s commission on the Supreme Court of the United States. In issuing its final report, the commission resembled little more than participants in a high school debate tournament. Few minds were changed, and nothing that came out of the debate had any practical significance in political reality.
Although he has not said as much, Mr. Biden may have received exactly what he wanted out of the 34-member Commission of ivory tower academics: vague reform recommendations over a 288-page report that few will read and fewer will have the political courage to undertake.
The report is laced with qualifications, and the both-sides-of-the-mouth type of talk one has come to expect of bureaucratic commissions. Still, the Commission quickly pointed out what most of the country — save the very vocal, far-left base of the president’s party — already understood: “Court-packing would almost certainly undermine or destroy the Supreme Court’s legitimacy.”
The nothing-burger from his Supreme Court Commission may suit Mr. Biden just fine. He has made no secret of his lack of enthusiasm for court-packing. With his poll numbers sinking fast and a razor-thin Democratic majority in Congress that he’s struggling to line up behind his legislative agenda, how much political capital can he spend on court-packing or even term limits? His own commission, in its final report, pointed to growing social and political polarization around the court, especially during “high stakes” nominations of new justices.
The commission even found itself stymied on small-ball reforms such as imposing term limits on justices, which would in theory engineer a quicker turnover on the court and give presidents of both parties a fairer shot at nominations — if only they could get around the Constitution’s guarantee of life tenure for our justices.
“Opponents contend that far from meeting the burden of persuasion, term limits are likely to worsen existing problems, such as the partisanship of the confirmation process, while at the same time introducing new problems,” the commissioners wrote in their report. “In addition, opponents argue that term limits would be extraordinarily difficult to implement.”
Indeed, term limits would create the impression that nominations were simply part of a system of political spoils, further destabilizing our courts and undermining our civil liberties.
At every turn, the commissioners ran into the Constitution. In reading their report, one easily senses the frustration over how well the Founders preserved the independence of our judiciary — so well, every proposal to restructure the judiciary is dashed upon the shoals of Article III. In other words, the Constitution both protects our civil liberties and the very institutions it installed to stand watch over our freedoms.
Unable to navigate around that pesky Constitution, Mr. Biden’s commissioners lament that “acute polarization is likely to continue to affect the debate over the Court’s role in the constitutional system, and to perpetuate partisan conflict over nominees to the Court.” Sure, but only if progressives continue to insist upon viewing the Court as a political prize to be won, rather than the purposefully “weakest of the three departments of power” Alexander Hamilton said it should be in Federalist No. 78.
Although Mr. Biden has yet to indicate what, if anything, he may do in response to the commission’s report, the radical left will continue to press its richly financed dark money campaign to undermine the court, destroy the rule of law and remove Constitutional protections for all of our liberties, including religious liberties. Indeed, even far-left members of the commission continue to press for court-packing, despite their own report admitting it would be ruinous for our country’s future.
The big prize for the left is court-packing, which would degrade the Supreme Court into a political pawn, doing the bidding of whichever political party is in power. But it is only “progressives” pushing for it. If court-packing, term limits or any other fundamental judicial changes are implemented, the result would be catastrophic for our country.
For now, the Constitution continues to hold its detractors at bay. Those thinking themselves wiser than the Founders of our country have run into a harsh reality: preserving freedom is a delicate matter, one that cannot be achieved through partisan machinations. Rather than expose the flaws in the system, the commission has instead revealed how well built is what Hamilton called “the citadel of the public justice and the public security.”
• Kelly Shackelford is president, CEO and chief counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.
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