The legislation to expand the Supreme Court to 13 seats appears dead, at least for now. Senate Republicans will not sign on, it cannot pass without reform of the filibuster, and even House Speaker Nancy Pelosi (D-CA) has said it's a waste of time until President Joe Biden's bipartisan court commission makes its recommendations.
But that doesn't mean reforming the Supreme Court is impossible. On the contrary, argued Dahlia Litwick for Slate on Thursday, the high court is effectively being pressured into reforming itself — at least for now.
"Among the many unexplained mysteries of the current Supreme Court term, perhaps the greatest is the mystery of the court's failures to take up major gun rights appeals, or a long-simmering 15-week Mississippi abortion ban that might be the perfect vehicle for a challenge to Roe v Wade," wrote Litwick. 'The conservative legal movement that spent buckets of money and capital to seat Amy Coney Barrett is already feeling 'disappointed and a little despondent' about her. The newest Justice is looking 'timid' to them, and failing to take the bold actions they demanded."
With the GOP strong-arming their way to a 6-3 majority on the court, Chief Justice John Roberts, a conservative incrementalist, is now faced with chaos, and is essentially forced to try to rein in the right flank for fear of public backlash and momentum for legislative changes to the court's structure. And that, argued Litwick, is already bringing changes to how the court operates.
"As many a historian has noted, FDR's unfulfilled threat to pack the court was itself a powerful driver of court moderation," wrote Litwick. "It is possible, if not likely, that there are still enough conservatives on the current court who don't want to invite progressive reformers to take a brickbat to the institution, to mean that in a sense 'court reform' is already happening if you can define that term to mean progressive agitation and organizing on the issue that is already moderating the behaviors of individual justices."
"It is this sustained and productive frustration on the left that is really new and in theory transformational," wrote Litwick. "A progressive left that often sleepwalked through the Merrick Garland blockade and had no idea how to message the judiciary in 2016 is now wide awake and furious. New progressive groups are pushing a debate about the courts that lived for years only on academic panels. Liberals who were outraged about the norm-busting hardball around Garland, Kavanaugh, and Barrett, are not in fact waiting around for an adverse abortion or guns decision. They are energized about court reform right now and they aren't waiting for radical decisions to demand change ... That's a tiny win, but it's absolutely a step in the right direction."
You can read more here.