14 The New York Reviewruns... drowned out the agonised
and resentful shrieks.Finally, the tone of Soyinka’s writ-
ing, as he looks squarely at the terri-ble truths of his homeland, is one of
weary impotence as the ghoulish de-
tails unfold and the story grinds to its
end. Though the rendering of violence
is not pornographic, the novel revealsa dispirited population resigned to
amoral leaders who are quietly con-
structing a state governed by a kind
of cannibalism. The passage of fifty
years between Soyinka’s second noveland his third suggests that Chronicles
from the Land of the Happiest People
on Earth may be his last. It is very dark;
depictions of postcolonial Nigeria don’t
get much darker. QFinal Report
by the Presidential Commission on the
Supreme Court of the United States.
288 pp., December 2021, available at
whitehouse.gov/pcscotus/final- report/The Presidential Commission on the
Supreme Court of the United States
had an image problem from the mo-
ment President Biden established it last
April, fulfilling a campaign promise
that he would examine what might be
done with a Court that was “getting out
of whack.” The Democratic left, hun-
gry for payback for the two seats they
regard Donald Trump and Mitch Mc-
Connell as having “stolen,” dismissed it
as an effort to shield the president from
having to confront their demand to add
two or even four additional seats to the
Court. Others simply shrugged after
noting that Biden asked the thirty- four-
member commission— mostly law pro-
fessors, arrayed from the center- left to
the center- right— not for concrete rec-
ommendations but simply analysis, for
the president’s consideration, of “the
principal arguments in the contempo-
rary public debate for and against Su-
preme Court reform.”
The heavily footnoted 288- page re-
port the commission delivered eight
months later was received with no more
enthusiasm by skeptics who seemed to
forget that it was never supposed to
endorse a plan of action. “Why Did
Biden’s Supreme Court Commission
Fail So Completely?” a headline in
Slate asked. At least that was a head-
line. Media attention was sparse, re-
flecting the initial cynicism and giving
the public little reason to care what the
experts had to say about any of the pro-
posals they reviewed.
That’s a loss, because the project was
in fact highly instructive, although not
necessarily in ways the White House
or the participants intended. While os-
tensibly about whether and how to “fix”
the Court, what the project drove to the
surface was a profound debate about the
institution itself. How should we think
about the Court today— its extraordi-
nary power, the agenda of its new con-
servative supermajority, its place in a
democracy suddenly turned fragile?
Justice Stephen Breyer’s plan to re-
tire at the end of the current term might
have brought such questions to the fore
in any event; a Supreme Court vacancy,
along with the televised shadow play
that passes these days for a Senate con-
firmation hearing, invites people to
think about the Court and what they
want from it. But in view of the deeper
questions underlying the commission’s
work, there is something special about
Breyer’s imminent retirement, a meld-
ing of man and moment. He happens
to be this Court’s last remaining link to
the remarkably different one that came
to an end fifty- three years ago: the Su-preme Court under Chief Justice Earl
Wa r ren.
Of the six former Supreme Court law
clerks currently serving as justices— a
number without precedent— Breyer is
the only one who clerked during what
I’ve recently called the Court’s heroic
age; Judge Ketanji Brown Jackson,
Biden’s nominee to succeed him, was
not yet born when the Warren Court
ended. Breyer spent the 1964–
term in the chambers of Justice Arthur
Goldberg. That was the term the Court
decided Griswold v. Connecticut, hold-
ing that married couples have a consti-
tutional right to use birth control and
laying the groundwork for Roe v. Wade.
The one- person- one- vote landmark
Baker v. Carr had been decided three
years earlier. Brown v. Board of Edu-
cation was only a decade old. Miranda v.
Arizona, giving criminal defendants the
well- known warnings, lay ahead.
Those were the years, in other words,
when the Court harnessed the Consti-
tution as an engine of progress for ra-
cial minorities, for criminal suspects,
and for the right of all Americans to
have their votes receive equal weight.
On the legislative front as well, it was
a time of enormous accomplishment.
The Civil Rights Act of 1964 had just
become law when the young Breyer
arrived in Washington. The Voting
Rights Act of 1965 was enacted as his
clerkship was ending.
The point isn’t that Stephen Breyer is
today’s Earl Warren. Clearly he is not,
whether by temperament or opportu-
nity; the Court’s liberals have been play-
ing defense for the past half- century. But
he is, nonetheless, the Supreme Court’s
last romantic, holding fast all these years
to a belief in its ability to deliver fairand workable solutions to the problems
Americans persist in laying at its door.
Call this pragmatism. Call it justice.
“What did the Warren Court stand
for?” the legal historian Morton J. Hor-
witz asked in The Warren Court and
the Pursuit of Justice (1998), a paean
to the period. Horwitz and Breyer were
both born in 1938. Their contempo-
raries, titans of liberal constitutional
scholarship like Owen Fiss of Yale and
Laurence Tribe of Harvard, eventually
came to staff and even dominate the
nation’s law school faculties. Nearly
any member of this cohort, many of
them Warren Court clerks like Fiss and
Tribe, might have given an answer sim-
ilar to the one Horwitz offered: “Like
no other court before or since, it stood
for an expansive conception of the dem-
ocratic way of life as the foundational
ideal of constitutional interpretation.”The commission was headed by Bob
Bauer, who was Barack Obama’s White
House counsel, and Cristina Rodrí-
guez, a Yale Law School professor who
also served in the Obama administra-
tion. The commissioners divided into
five working groups, each group writ-
ing one of the report’s chapters: ori-
gins and history of the reform debate;
membership and size of the Court; life
tenure; the Court’s role in the constitu-
tional system; and the Supreme Court’s
procedures and practices. The full
commission saw the individual chapters
only toward the end of the process. The
negotiations among the commissioners
that followed enabled the report to re-
ceive their unanimous approval.
What shines through the testimony
presented by younger scholars at thecommission’s public hearings is how
little idealism remains, or at least how
little of it has been embraced by a gen-
eration for which the Warren Court
exists only in books. The Supreme
Court in retrenchment, in thrall to the
mid- twentieth- century’s invented con-
struct of “originalism” as the key to the
meaning of the Constitution, has been
the overriding fact of their professional
lives. (Along with the report itself, the
testimony is posted on a dedicated
White House website.)
Taken as a whole, the commission’s
work lets the public in on the fact that
the legal academy is close to giving up
on the Supreme Court. Not that this
development could have remained a
secret for much longer: as the spring
semester began, an op- ed in the Los
Angeles Times by Erwin Chemerinsky,
the dean of the law school at Berkeley,
and Jeffrey Abramson, a professor of
law and government at the Univer-
sity of Texas, captured the mood with
an anguished question: “What do we
teach law students when we have no
faith in the Supreme Court?”
There are exceptions, naturally:
well- known law professors who bite
their tongues as long as an incumbent
justice might hire one of their students
as a law clerk. But among the commis-
sion’s invited witnesses, serious and
even despairing critiques of the Court
from progressive scholars were so strik-
ing that one conservative witness, Curt
Levey, the president of the right- wing
Committee for Justice, gloated with
undeniable accuracy, “It wasn’t long
ago that when one heard such charac-
terizations of the Supreme Court, they
typically came from conservatives.”
Indeed, the tables have turned. But
there is something deeper, even more
painful at work than nostalgia for a
paradise lost: an acknowledgment that
what once looked like paradise was
in fact a deviation from the historical
norm, unlikely to be replicated in the
foreseeable future. Across the span of
American history, the Supreme Court
has most often been the obstacle to
progress; as some witnesses empha-
sized, for reasons of practice and struc-
ture it is highly likely to remain so.
There is more at stake, in other words,
than payback for stolen seats.
One commission witness, Samuel
Moyn of Yale Law School, dismissed
as entirely beside the point the current
hand- wringing over whether the Su-
preme Court’s “legitimacy” is at risk.
“The problem to solve is not that the
Supreme Court has lost legitimacy,”
he said, “but that it thwarts the dem-
ocratic authority that alone justifies
our political arrangements.” Moyn dis-
paraged proposals to add seats to the
Court or to abolish the life tenure of
its members, steps that would leave it
unchanged in its day- to- day exerciseShould We Reform the Court?
Linda Greenhouse
Supreme Court nominee Ketanji Brown Jackson with former US senator Doug Jones, left,
after a meeting with Senate Minority Leader Mitch McConnell at the Capitol,
Washington, D.C., March 2, 2022Jonathan Ernst /ReutersGrantGreenhouse 10 _ 17 .indd 14 3 / 10 / 22 4 : 00 PM