Why Is Biden Letting Anti-Choice Lawyers Have a Say in Court Reform?

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Analysis Law and Policy

Why Is Biden Letting Anti-Choice Lawyers Have a Say in Court Reform?

Susan Rinkunas

Court reform is one of progressives’ top priorities. And yet Biden has included anti-choice lawyers and Federalist Society members in its courts commission.

President Joe Biden recently made good on one of his campaign promises by creating a bipartisan commission to provide recommendations on how to reform a U.S. court system that was, he said, “getting out of whack.”

This commission was his answer when facing questions about whether, as president, he’d support expanding the Supreme Court following the death of Justice Ruth Bader Ginsburg and lightning-fast confirmation of Amy Coney Barrett. The White House announced the group’s formation on April 9, though the commission will merely issue a report analyzing arguments for and against reform, rather than providing explicit recommendations, as Biden suggested last year.

At first glance, the list of 36 commissioners seems innocuous—it’s full of lawyers, professors, and former judges. But a closer examination shows that it includes people who have called abortion “horrific,” take an originalist view of the Constitution, or are defenders of the Federalist Society, the ultraconservative group that extensively vetted nominees for President Trump.

The members’ selection comes at a time when at least 18 abortion cases are just one step away from the Supreme Court, with its 6-3 conservative supermajority posing an existential threat to reproductive rights established under Roe v. Wade and Planned Parenthood v. Casey. (President Biden promised during the campaign to protect the right to choose by codifying Roe in federal law, a promise that became much harder to keep after Ginsburg’s death and losses in Senate races like Maine and North Carolina). Reproductive justice issues like insurance coverage, the environment, and gun control are also pending before the Court. It’s not hyperbole to say that the Court stands to drastically alter people’s ability to choose whether and when to parent and whether they can raise their families in a safe environment.

Sex. Abortion. Parenthood. Power.

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Nan Aron, founder and president of the liberal judicial group Alliance for Justice (AFJ), said it’s clear that the Biden administration isn’t quite ready to embrace ideas like court expansion since the commission is tasked with only writing a report, not making any reform recommendations. The group’s mandate was already limited, but its ideological makeup constrains it even further, she said.

“Given that a driving force over the decades on the right has been overturning Roe v. Wade, I question whether [conservative] individuals who are part of this effort can put aside their beliefs to support much-needed structural reform,” Aron said.

Natasha Chabria, associate counsel with the Lawyers’ Committee for Civil Rights Under Law, said commission members should bear in mind that their report could impact millions of people in the United States.

“They need to be thinking beyond their own personal politics and thinking about what the impacts will be on these individuals and what are the core rights and the fundamental rights of being a citizen of this country that will allow you to live a healthy and productive life,” Chabria said. Ideally, she said, the commission would reflect “the values and the needs of the people of this country, the people who voted [Biden] into office.”

Chabria works on the group’s Economic Justice Project, where she focuses on health equity and reproductive justice; the Lawyers’ Committee filed an amicus brief in June Medical Services v. Gee arguing that restricting abortion in Louisiana would especially harm Black women and people with low incomes in the state.

“Reproductive justice is really at its core about bodily autonomy,” Chabria said. “It’s critical to note that it’s not a partisan issue.”

What views do some of the conservatives hold?

Four of the scholars named to the commission are openly hostile to abortion access or support legal groups or theories that oppose abortion.

Thomas Griffith is a retired D.C. Circuit judge who sided with the Trump administration in a 2017 case where the government tried to prevent an undocumented teen in a Texas shelter from getting an abortion. The teen won the case; Griffith joined the dissent. The next year, after a lower court judge ruled that the government can’t stop pregnant teens in immigrant detention from getting abortions, Griffith wrote a dissent declaring that the court was somehow opening the door to the government having to arrange for post-viability abortions of people in the care of the Office of Refugee Resettlement.

Adam White is a George Mason University law professor and scholar at the American Enterprise Institute who garnered attention for his transphobic tweets as well as for claiming Christine Blasey Ford could be investigated for perjury. White tweeted in 2019 that an abortion provider discussing the health risks of pregnancy was “treating pregnancy as terrorism.” He correctly cites that about 700 people per year die from pregnancy, but fails to include that for every person who dies, another 70 nearly die—meaning that more than 50,000 people experience life-threatening complications from pregnancy and childbirth every year.

White has tweeted about abortion many times, including one post where he listed abortion alongside slavery, eugenics, and Japanese internment as things worse for the United States than Trump. He also tweeted that employers required to provide insurance coverage of birth control were being asked to “assist in providing abortions,” repeating a false anti-choice talking point that birth control causes abortions.

Jack Goldsmith is a Harvard professor who has argued that the Federalist Society is correct when it claims it does not take policy stances or endorse nominees—even though it fairly obviously opposes Roe and it (alongside the Heritage Foundation, a conservative think tank) literally handpicked candidates for Trump’s judicial short lists in 2016 and 2018.

Keith Whittington is a Princeton professor and originalism scholar who, in a New York Times op-ed last October, parroted President Trump’s line that we really don’t know if Amy Coney Barrett would overturn Roe—even though she was selected for that purpose and Sen. Josh Hawley said Barrett passed his overturn-Roe test for justices. Whittington has contributed several videos to the Federalist Society.

Why do their views matter?

Chabria noted that the protections provided by Roe are the floor for people who can get pregnant. For people to have bodily autonomy, they also need things like paid time off work for medical care, doctors versed in LGBTQ care, paid parental leave—all things the Supreme Court could limit.

For true reproductive justice, women also need equal pay, need the Hyde Amendment repealed, and need to be free of xenophobic, sex-selective abortion bans that are based on a belief that Asian American and Pacific Islander women bring “backwards” values with them from their countries, said Da Hae Kim, the legal advocacy and judicial strategy manager for the National Asian Pacific American Women’s Forum (NAPAWF). Notably, then-judge Barrett would have allowed a sex-selective ban to go into effect before she was nominated to the Court.

“We need to have an environment where someone can make decisions about their families and community,” Kim said, adding, “we want all of our judges to reflect the lived experiences of our communities and understand that we don’t lead single-issue lives.”

Given that opposition to abortion is in the Republican Party platform, it would likely be difficult to find conservative legal scholars who support Roe, abortion access, and health care for people living on low incomes, but this is a problem inherent in making the commission bipartisan.

Since the makeup of this commission may not reflect U.S. voters’ values, Chabria said, it’s important for the public to weigh in if there are opportunities to do so. “We [should] bring all of our perspectives to the table so that they are working with the full, holistic view of what the public believes is important with regards to the Supreme Court,” Chabria said.

Talk of court reform stems from advocates questioning the Court’s legitimacy, especially following the Bush v. Gore decision that decided the 2000 presidential election and, more recently, after the confirmation of Brett Kavanaugh despite sexual assault allegations and huge debts that mysteriously disappeared, and of Barrett, eight days before the end of a presidential election when more than 60 million people had already voted.

We need a new consensus to help repair the legitimacy of the Supreme Court, said Bridget Todd, communications director at UltraViolet, a national women’s organization.

“Republicans hijacked the process to stack the Court with conservatives under President Trump. Those in charge of studying potential legal reform today should not be the same people who helped undermine the Court in the first place,” she said.

Todd said Goldsmith, Griffith, White, and Whittington are threats to women’s rights and liberties and they use “the veneer of legal scholarship to express their personal opinions on issues that impact millions of women,” adding, “It is deeply disappointing that President Biden’s commission to study Supreme Court reform includes legalists who are notably transphobic, anti-abortion, and sexual abuse apologists.”

Despite the limitations of the commission and the views of its members, Aron of AFJ said any discussion of the federal courts that helps people understand what they do and why they’re important could be viewed as a benefit.

It also puts the justices themselves on notice.

“Courts are not immune from public criticism,” Aron said. “I think it’s important that the justices on the Supreme Court know there’s a process underway—both within this commission and outside—of active conversation around reform. And the criticism is based on the fact that many segments of the American public have a very deep understanding of the institution as it stands now, namely that there is an entrenched minority rule on the Supreme Court, it is indeed a reactionary court. It is imbalanced, and to maintain legitimacy and confidence of the public, it needs to change.”