In the Washington Post, it was Harvard prawfs Larry Tribe and former federal judge Nancy Gertner. In Time, it was Penn prawf Kermit Roosevelt. Will Baude did it at Volokh Conspiracy, and Keith Whittington did it in the Wall Street Journal. No doubt more members of President Biden’s Supreme Court commission will have something to say.

The Final Report was unanimously approved, largely because it fairly reflected the arguments proffered for and against various reform proposals and avoided issuing any recommendations, whether to do something or do nothing.

The Commission was not asked to make recommendations, and it did not. I hope it offers some helpful analysis of reform proposals surrounding the Court.

A wag might call this exercise in accomplishing nothing of actual utility by a mean characterization involving digital manipulation of sensitive parts of genitalia for self-gratification. But no academic would call it that, because it would make them a pariah in an institution whose highest and best use is to use as many words as possible, appearing and reappearing in ever-changing order, to achieve the overarching goal of offending no one.

There was a huge, highly political exigent question before the commission, whether to pack the court with additional justices to “balance” out the three justices appointed by Trump. And there was a longer term “guardrail” issue to prevent a takeover of the Supreme Court in the future, term limits.

The first is mostly about we could call high politics, or theories of constitutional interpretation. It is generated by the combination of life tenure and Senate confirmation for the Supreme Court, and it is that the composition of the Court is not tied in a predictable and uniform way to the outcome of presidential elections. Some presidents appoint several Justices; some presidents appoint none. What determines how many appointments a president gets is a combination of pure luck and partisan hardball. We do not staff any other branch of our government that way, and it has distorted the relationship between the Court and democracy.

Roosevelt admits that nominations, in the scheme of things, are the product of “a combination of pure luck and partisan hardball,” the latter meaning Mitch McConnell’s disgraceful, if lawful for no better reason than lack of remedy, refusal to allow Merrick Garland’s nomination to be considered. To a significant extent, this is McConnell’s payback for his political machinations. He’s probably fine with that.

Gertner and Tribe are less moderated in their argument.

Offsetting the way the court has been “packed” in an antidemocratic direction with added appointments leaning the other way is the most significant clearly constitutional step that could be taken quickly. Of course, there is no guarantee that new justices would change the destructive direction of judicial doctrine we have identified; respect for judicial independence makes that impossible. Of course, successive presidents might expand the court further, absent an unattainable constitutional amendment fixing its size at a number such as 13. But the costs are worth the benefits.

In plainer English, the current constituency of the Court is bad and has to be fixed. In contrast, Whittington makes the counter argument.

If such a drastic action were truly necessary, there would be widespread political support for it. If a narrow political majority can convince itself that we are in such a crisis, then the problems facing the country are far deeper than a misguided court.

Altering the size of the court to reverse constitutional rulings that politicians don’t like can be done by simple legislative majorities. Powerful constitutional norms have helped restrain legislators from blowing up the court when they were unhappy with the justices or a new party assumes power. The erosion of these norms would have long-term consequences for how the constitutional system works and how effective the court can be at remedying constitutional violations.

Two additional points need to be made, First, packing the Court in reaction to its make-up is the most blatantly political response possible. If you saw Trump’s appointees as purely political choices, then a purely political reaction might seem entirely appropriate. But then, any belief in the legitimacy of the Supreme Court as the antidemocratic institution it’s meant to be is lost. Forget the mechanics of future expansion to keep gerry-rigging the vote. That would just be the way a political court is crafted.

Second, lawfare has turned the Supreme Court into a battleground to overcome congressional paralysis. What can’t be accomplished through the political branches is sought through the judicial branch. Except the judicial branch wasn’t built to be a legislative substitute and does it poorly, both in terms of reaching conclusions that conform to public policy approval and to dealing with the myriad nuts and bolts of turning their rulings into action.

Sometimes, it’s because a critical part of an issue isn’t before the Court, so the Court, in its exercise of modesty, doesn’t address it, leaving society without the means to put a ruling into effect. Other times, it just chooses not to get its hands dirty, or doesn’t appreciate the problems on the ground of making a ruling work in the real world, and leaves it up to others to figure it out.

Kermit Roosevelt uses the current abortion cases to make his point, raising the likelihood that Roe and Casey will be reversed or limited. Others question why abortion should be left to a court at all when it’s a policy choice rather than a penumbra.

But because the Commission made no recommendation, the same arguments will go around in the same circles with the same passion and angst, while the Supreme Court makes decisions outside the modest limits of its purview that will almost certainly undermine the appearance of legitimacy regardless of how the Court rules, unless the decisions are  essentially unanimous. Even then, most would believe the rulings are legit.

We need a Supreme Court, for better or worse, whose rulings will be accepted no matter what we think of them as the final word on constitutional and statutory interpretation. We need to make hard decisions as to how that Court should function, not regurgitate  the same arguments in perpetuity.

We can’t function if we’re in a constant state of argumentation that never goes anywhere or results in any final decision. As someone who has argued throughout his career that the Supreme Court is more often wrong than right, and has seen the damage done in the trenches of its rulings, I would still rather have a bad court than no court. Stop the arguing and make a decision. This merry-go-round has to stop so we can move on.