Any bipartisan commission’s effort to reform the Supreme Court will fail

Vice President Joe Biden recently declared that if elected president he will establish a commission of Democrats, Republicans and constitutional scholars to study how to change the Supreme Court. That commission will fail: whatever the recommended changes, the Supreme Court will always have a controlling political bias and remain autonomous.

If term limits or age limits are imposed on the court, that will do nothing to change these biases. Whatever the number of justices, it will always have to be uneven so as to break tie votes. A tie remands the decision to a lower court. And an uneven court means that one party, whether Republican or Democrat, will always control the political vote.

If the Supreme Court is packed, the same political, autonomous control will remain.

This political autonomy so disturbed the late Robert Bork that he recommended that Congress be permitted to veto Supreme Court decisions. If congressional control of the Court failed, Bork said, at least it would be a failure of democracy. But if we had this system and if on Nov. 3 the Democrats retained control of the House and gained control of the Senate, their veto power over the Supreme Court would be patently political.

It all began with Chief Justice John Marshall. In 1803 the Court for the first time ruled, in Marbury v. Madison, that an act of Congress was unconstitutional. It would be the business of the Court, said Marshall, to determine what the law is and what is and is not constitutional. That made the Supreme Court autonomous, and it remains that way today. Five judges, or really just one judge, can use the autonomous Court to run the country legally. There is something wrong with this picture. If the Court numbers nine or, if packed, 13, that political control will remain.

How can this be changed? It can’t. A bipartisan commission cannot resolve political control. It bothers me that one or five or seven justices might run the country legally. But there is no solution.

Almost all three branches of government — executive, legislative, judicial — are restricted by checks and balances; the Supreme Court is the exception. Lower court decisions can be appealed to the Supreme Court, but Supreme Court decisions can be appealed only to Congress, which can change the law or start the amendment process. Presidents have to be elected and reelected, and their actions can be overridden by Congress. Congress, too, has to be elected and reelected, and their bills can be vetoed by the president. No such governance controls the Supreme Court.

Nominations to the Supreme Court are always political, though nominees sometimes become wild cards Republican presidents nominate, always, center-right judges; Democratic presidents nominate, always, center-left judges.

Constitutional scholar Jeffrey Toobin has rightly observed: “When it comes to the core of the Court’s work … it is ideology, not craft or skill, that controls the outcome of cases…. When it comes to the incendiary issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.” What separates justices “is judicial philosophy—ideology—and that means everything on the Supreme Court.”

In the justices’ private dining room, which I got to visit when I worked for Chief Justice Warren Burger, just two photographs hang on the wall: Marbury and Madison. And on the first floor of the Supreme Court building stands a huge statue of John Marshall. Well, of course.