Progressives fume as Biden Supreme Court commission seems to reject court-packing

Documents released Thursday were not final report but draft discussion materials ahead of Friday meeting

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Initial progressive reaction to draft discussion materials released by the White House's presidential commission on the Supreme Court Thursday was not positive, as Democratic activists and commentators derided the commission for its apparent reluctance to endorse court-packing. 

"This report is an abomination," Slate writer Mark Joseph Stern tweeted. "It assumes that today's Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy. Republicans must be thrilled with this outcome. It's a gift to the GOP." 

"We have said since the Commission’s beginning that for the Commission to provide a meaningful contribution to restoring the legitimacy of our judiciary, it needs to advance a specific list of Supreme Court reforms that can be acted upon in the near term," American Constitution Society President Russ Feingold said in a statement. "The discussion materials released today unfortunately fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us." 

The American Constitution Society is the left-leaning counterpart to the libertarian and conservative Federalist Society. Feingold added that the commission should have pushed for several options "to remedy the Right's packing of the Court," among other things. 

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Feingold said the lack of support for such proposals will result in the Supreme Court "continuing to strip away our constitutional rights and undermine our democratic legitimacy as a country." 

The term court-packing was coined when former President Franklin Delano Roosevelt proposed adding several justices to the Supreme Court because he was frustrated with the results of the court's rulings. Many Democrats are proposing that same thing now. In some cases, Democrats also use the term court-packing to refer to political hardball tactics used by Republicans during standard judicial confirmations without actually expanding the number of justices – as Feingold did in his statement. 

The White House has emphasized that the documents the commission released Thursday were only discussion materials, not even a draft of a final report. The commission still has some time to produce its final document. It is also notably tasked not with making recommendations but with summarizing the debate around court reform and some potential actions Congress or the White House could take on the issue. 

Commission Co-Chairman Bob Bauer, a former White House Counsel to former President Barack Obama, emphasized this a Friday meeting.

"The commission has not edited the material and the material should not be understood to represent the commission's views or those of any particular commissioner," Bauer said. "To this point and particularly in light of some confusion and uncertainty since the posting of these materials, we refer you to the front page of each of the drafts that have been publicly posted that clearly set forth these points."

Bauer added that the materials are "not the commission's drafts nor a draft report of the commission.

The commission's discussion materials, which come ahead of a report that is expected to be released later this year, present a mixed view on the merits of packing the Supreme Court, a topic that is likely to dominate a significant portion of the Friday meeting. 

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"Proponents of Court expansion argue that by adding two or more seats to the Supreme Court, Democratic lawmakers could help restore balance to – and, thus, the legitimacy of – the Court. Those who take this perspective also emphasize that a failure to respond to the hardball tactics since 2016 might encourage future aggressive measures in the Senate confirmation process," the discussion materials say. 

"But the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court's legitimacy," the materials continue. "Recent polls suggest that a majority of the public does not support Court expansion. And even some supporters of Court expansion acknowledged during the Commission's public hearings, the reform… would be perceived by many as a partisan maneuver."

The materials also address many other topics, including the possibility of creating a rotation of justices rather than just nine permanent justices. This idea would mean that judges on the nation's courts of appeals would be assigned on a temporary basis to the Supreme Court before returning to their native circuit courts and being replaced by yet more appeals judges to handle the high court's caseload. 

The idea, which is designed to reduce the power of any one justice, is essentially the reverse of the 1800s practice of "riding circuit." Supreme Court justices would for part of the year travel around the country and decide cases as an appeals judge before returning to Washington, D.C., to resume their normal duties.

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Nevertheless, some on the left made clear Thursday that the work of Biden's commission will be wholly insufficient if it does not make a case for court packing. 

"When you put no court reformers on your court reform commission, you end up with no court reform," Elie Mystal of The Nation wrote on Twitter. "This game was fixed from the moment @JoeBiden named the commission."

He added that the discussion materials are "absolutely useless" and "designed to produce no change." 

Fox News' Constance McDonough contributed to this report.