The Morning Dispatch: Progressive Frustration With Biden’s Supreme Court Commission

Happy Monday! Sure, Aaron Rodgers may have ripped out Bears fans’ hearts yet again, but at least the Chicago Sky won its first-ever WNBA championship on Sunday!

(Can you tell Declan is back from vacation?)

Quick Hits: Today’s Top Stories

• The United States was elected to rejoin the United Nations’ Human Rights Council for a three-year term beginning in 2022, four years after the Trump administration withdrew the U.S. from the body over concerns it disproportionately focused its criticism on Israel and counted human rights abusers among its ranks. Secretary of State Antony Blinken echoed some of these sentiments in a statement last week, but said countries must “​​push back against attempts to subvert the ideals upon which the Human Rights Council was founded.”

• At least 65 people are dead and 70 injured after a pair of suicide bombers blew up a Shiite mosque in the Afghan city of Kandahar on Friday. The Islamic state claimed responsibility.

• The Pentagon said Friday it has offered condolence payments and relocation services to surviving family members of the 10 civilians inadvertently killed in an August 29 drone strike U.S. military officials believed was targeting an Islamic State militant.

• The Biden administration confirmed Friday that the U.S. will lift international travel restrictions on November 8, allowing fully vaccinated tourists and relatives of Americans to enter the country once again after being barred for most of the pandemic.

• U.S. retail sales increased 0.7 percent month-over-month in September, the U.S. Census Bureau announced Friday.

• Ohio-based Christian Aid Ministries said on Sunday that 17 of its missionaries—16 U.S. citizens and one Canadian citizen—were abducted in Haiti over the weekend during a trip to an orphanage. Authorities believe the Haitian 400 Mawozo gang is behind the kidnappings.

• British Member of Parliament Sir David Amess—a member of U.K. Prime Minister Boris Johnson’s Conservative Party—was stabbed to death during a constituent meeting on Friday. A 25-year-old man, believed by police to have ties to Islamic extremism, was arrested over the weekend in connection with the murder.

• A U.S. Capitol Police officer, Michael Riley, was indicted Friday on two obstruction charges after allegedly helping a participant in the January 6 riots conceal his involvement via social media. Riley was not on duty inside the Capitol on January 6, but was among the officers who responded to reports of an explosive device near the Capitol complex.

Supreme Court Commission Disappoints Progressives

Back in April, President Biden signed an executive order establishing a 36-person, bipartisan commission tasked with evaluating the feasibility of various proposals to reform the Supreme Court, with a particular focus on the length of justices’ terms and the size of the bench. As we noted in the spring, Biden had expressed opposition to packing the Supreme Court during the Democratic presidential primary, but, once nominated, faced significant pressure from progressives to rethink that stance. Enter the “Presidential Commission on the Supreme Court of the United States.”

“Historically, presidential blue ribbon commissions have been a way to kick an issue down the road so the president doesn’t have to deal with it immediately,” Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, told us at the time. “And hopefully when the commission report comes out, there’s less controversy.”

The commission’s official report has not yet been published—that’ll come sometime next month—but the collection of legal scholars, former judges, and activists released an early draft on Friday in advance of the group’s first public meeting.

“The nation has been engaged for some time in an intense and ongoing debate about the Court’s composition, the direction of its jurisprudence, and whether one political party or the other has breached norms that guide the process of confirming new Justices,” one draft section reads. “The Commission does not purport to offer a consensus history of the last decades of conflict over the Supreme Court, nor does it come to a conclusion about whether the Court has suffered a loss or crisis of legitimacy. Commissioners hold very different views on these matters.”

The report is broken into four categories looking at different areas of potential reform, and comes in at about 200 pages. But the above excerpt—acknowledging significant differences of opinion and more descriptive than prescriptive—is more or less representative of the commission’s preliminary work.

Take court packing, for example. The proposal to add more seats to the court—a move many progressives argue is necessary to counteract former President Trump’s appointment of three conservative justices—is among the most controversial reforms being debated, and the commission more or less punted.

“As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices,” the report reads, noting Congress did just that eight times between 1789 and 1869. “The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise.”

But the group did sound a note of caution on the divisive idea. “There are significant reasons to be skeptical that expansion would serve democratic values,” the report reads, noting that “in some countries, alteration of the size of a country’s high court has been a worrying sign of democratic backsliding.” An expansion, the draft notes, could “reinforce the notion that judges are partisan actors” and damage the notion of the judicial system’s independence.

The commission seemed more amenable to the implementation of judicial term limits, though it noted such a move could be accompanied by unintended consequences regarding public perception of the court or justices’ behavior. “There is no sound reason for the number of appointments made by a President to vary much based on random chance, such as when Justices leave the bench due to illness or death,” the draft reads. 

Laying out a potential 18-year term, the commission made clear it was advocating for judicial responsiveness to the public—not partisan balance. “The existing system—buffeted by chance deaths, strategic behavior, and aggressive political tactics—makes it harder than it should be for parties that win elections to influence Supreme Court appointments,” the report claims, “and easier than it should be for parties that lose elections to nevertheless maintain control of the Supreme Court.”

Progressives, by and large, were displeased with what was released. Brian Fallon—executive director ofDemand Justice, a group that favors court packing—criticized the Biden administration’s inclusion of conservatives on the commission, telling MSNBC it was clear the process was “rigged” from the outset against anything “bold or game-changing.”

And it wasn’t just outside activists frustrated by the report—some of the commission’s more progressive members expressed disappointment with how the draft framed the group’s deliberations as well. “Dismissing the most salient and most viable intervention on the table cannot help but send a message that the underlying problem the intervention is trying to address is neither urgent nor serious, if it even exists,” Harvard law professor Andrew Crespo said in reference to court expansion. “Suffice to say there are a great many people who disagree with that conclusion.”

Republicans—irate at the commission’s formation back in April—were more or less quiet upon the release of the report. But two of the commission’s conservative members—Bush-era Justice Department official Jack Goldsmith and former clerk to Justice Clarence Thomas Caleb Nelson—resigned from the panel following the release of the draft report. Neither supplied a reason for their resignation, but Nelson told The Hill it was “an honor” for him to be a part of the commission.

White House press secretary Jen Psaki told reporters last week that neither she nor President Biden will weigh in on the report’s conclusions until the final version is submitted in the coming weeks.

Worth Your Time

• American businesses—from restaurants, to hospitals, to retail stores—are facing major staffing shortages as consumers continue to re-enter society in droves having determined the worst of the pandemic is behind them. Job resignations between April and August were up 60 percent year-over-year—even among more tenured employees—and the number of job openings in September was 86 percent higher than January’s tally. What’s causing these labor market gaps? Kathryn Dill explores possible explanations in her latest for the Wall Street Journal. “This [pandemic] has been going on for so long, it’s affecting people mentally, physically,” Danny Nelms, president of the Work Institute, told the Journal. “All those things are continuing to make people be reflective of their life and career and their jobs. Add to that over 10 million openings, and if I want to go do something different it’s not terribly hard to do.”

• In a piece for Bloomberg, American Enterprise Institute fellow (and friend of The Remnant) Michael Strain identifies some unnerving similarities between Govs. Greg Abbott of Texas and Gavin Newsom of California. While Newsom’s recent move requiring retailers to offer gender-neutral children’s sections and Abbott’s executive order banning businesses from implementing vaccine mandates for their employees aren’t comparably impactful, both mark a concerning government intervention into the private sector. “Both governors are violating the property rights of business owners to advance cultural agendas,” he writes. “Newsom wants to be seen as a hero to progressives by advancing evolving norms around gender. Abbott wants to champion the GOP’s views about personal liberty. Regardless of the merits of either cultural agenda, it is harmful to use government power over businesses as a tool to achieve them.”

• In a piece for the New York Times, Zeynep Tufekci took a deep dive into the available data on Americans who have yet to be vaccinated. As is often the case, the reality is a lot more nuanced than cable news talking heads would have you believe. “The research and data we do have show that significant portions of the unvaccinated public were confused and concerned, rather than absolutely opposed to vaccines,” she notes. “The Covid States team shared with me more than a thousand comments from unvaccinated people who were surveyed. Scrolling through them, I noticed a lot more fear than certainty. There was the very, very rare ‘it’s a hoax’ and ‘it’s a gene therapy,’ but most of it was a version of: I’m not sure it’s safe. Was it developed too fast? Do we know enough? There was also a lot of fear of side effects, worries about lack of Food and Drug Administration approval and about yet-undiscovered dangers. … There are different kinds of vaccine hesitancy, which require different approaches.”

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Toeing the Company Line

• Jonah caused a stir last week when he published a piece suggesting conservatives who oppose Trumpism create a third political party to purge the GOP of the former president’s influence once and for all. In Friday’s G-File, he addressed some of the criticisms of his argument and explained why he’s “still not fully convinced [his] idea wouldn’t work.” The moral of the story, he argues, is  that GOP operatives and politicians still haven’t come to grips with the hefty electoral price that Republicans have paid because of the former president. “Trump has hurt the GOP and continues to hurt the GOP in tangible ways,” Jonah writes. “Yet where are the grown-ups saying, ‘Okay, it’s time to learn our lesson’?”

• In Friday’s Vital Interests (🔒), Tom Joscelyn compares and contrasts dueling speeches by Chinese ruler Xi Jinping and Taiwan President Tsai Ing-wen. He calls attention to Tsai’s comments standing up to Xi: “The ‘more we achieve, the greater the pressure we face from China,’ Tsai warned. ‘So I want to remind all my fellow citizens that we do not have the privilege of letting down our guard.’”

• Former Reps. Dan Lipinski, a Democrat from the Chicago area, and Reid Ribble, a Republican from Wisconsin, joined Sarah and Steve on Friday’s Dispatch Podcast to reflect on their time in Congress and brainstorm how the legislative branch might be changed for the better.

• On Friday’s Advisory Opinions, Sarah and David discuss an obscure constitutional case before turning to two viral stories: One involving an elementary school and juvenile justice system in Tennessee, the other about an act of unfairness at Yale Law School.

• In Sunday’s French Press, David addresses growing resentment of so-called Evangelical elitism, a variant of the “D.C. cocktail party critique” that suggests Never Trump Christian writers “allegedly don’t have convictions” and are simply “auditioning for membership in an exclusive club.” But David believes these attacks miss the point. “One set of Christian elites is in conflict with another,” he writes. “Absent compelling evidence to the contrary, we should treat these differences as matters of conviction, not accommodation, and those of us who see the challenges of systemic racism, metastasizing cruelty, and reactionary authoritarianism right alongside threats to unborn life and religious liberty are saying what we believe, not merely seeking the applause of the progressive crowd.”

• On the site today, Chris Stirewalt explains how Arizona Sen. Kyrsten Sinema’s vocal opposition to the $3.5 trillion spending package provides cover to those who might agree with her but would rather avoid speaking out—including her fellow Arizonan Mark Kelly. “Without all 50 Senate Democrats, there’s no need for Kelly to even take a vote on the $3.5 trillion package,” Stirewalt notes.

  Let Us Know

  As of Friday, Andrew is now the third Dispatch staffer to become a parent since we launched this pirate skiff two years ago. He’ll be off for the next few months, but any and all newborn advice is much appreciated!

  Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Charlotte Lawson (@lawsonreports), Audrey Fahlberg (@AudreyFahlberg), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), and Steve Hayes (@stephenfhayes).