Will Democrats’ Supreme Court packing efforts get a second wind after doubts about the court’s “legitimacy” emerged in last week’s hearing over the Mississippi abortion law? That’s the question as President Biden’s commission to study Supreme Court expansion winds up its work today. As the Sun reported last week, it was Justice Sotomayor who raised the most pointed questions over the political “stench” that would ensue from a reconsideration of Roe v. Wade.

“If people actually believe that it’s all political, how will we survive?” Justice Sotomayor asked Mississippi’s solicitor general. “How will the Court survive?” She was joined in this line of questioning by Justice Breyer. He said that to “overrule under fire” a “watershed decision” like the court’s on abortion rights “would subvert the Court’s legitimacy beyond any serious question.” He cited 1992’s Planned Parenthood v. Casey.

The press took the cue almost immediately. The abortion hearing was a “Critical Moment” not only for Roe, but for “the Supreme Court’s Legitimacy,” a New York Times headline reported. The Grey Lady asked legal experts about “what a reversal of Roe v. Wade would mean for the court’s credibility.” Guess what they uncovered? “Questions about the court’s legitimacy are more pitched than they ever have been,” NYU law professor Melissa Murray said.

Harvard law’s Richard Fallon said “a possible comparison” to a Roe reversal “would be to Dred Scott v. Sandford,” the notorious 1857 pro-slavery ruling, though to his credit the legal sage conceded the analogy mightn’t be “quite apt.” The Times also quoted Notre Dame law professor Nicole Garnett, who said “the court would enhance its credibility and legitimacy as a judicial rather than a political body if it” reversed Roe.

Yet doubts about the court’s legitimacy aren’t confined to the newspapers. In the aftermath of the contentious abortion hearing, “sentiment is growing among Democratic senators” for an overhaul of the court, the Washington Post reported last week. Senator Warren said the hearing showed how the seemingly anti-Roe justices have “undermined confidence in the court and force us in Congress to rethink how to build a court that the American people can trust.”

“We’ve got to think about ways to sort of depoliticize the courts,” Senator Murphy told the Post, “to make sure that no one president gets to stack the bench.” Senator Whitehouse told Bloomberg an anti-Roe ruling “would be the straw that broke the camel’s back after an enormous cascade of other terrible political decisions.” Yet he stopped short of endorsing court packing, expressing reluctance “to get out ahead of my skis in that regard.”

Liberal activists have no such qualms, insisting that if Mr. Biden “wants to be taken seriously on this issue, he needs to put forward serious structural reforms,” as Sarah Lipton-Lubet of Take Back the Court told Bloomberg. She reckoned it was a foregone conclusion that Mr. Biden’s Supreme Court commission “wasn’t going to produce anything actionable.” Indeed, the commission’s report was a hedge, taking no formal position on whether to expand the court.

Term limits for justices, and defanging the court’s ability to negate laws — explosive propositions with no basis in the Constitution — were also glossed over. The ponderously titled “Presidential Commission on the Supreme Court of the United States,” heavily staffed with academics and scholars, settles for a meandering, if erudite, discussion weighing pluses and minuses, “not to attempt to resolve today’s debate according to a particular historical standard, but rather to offer context for today’s discussions.”

That reflects Mr. Biden’s own equivocation on court packing, something he declined to endorse as a candidate. Clearly the report offers no ammunition to the liberal academics and activists who claim, like Professor Murray of NYU, that overturning Roe means “the court has been weaponized for political purposes.” For these advocates of adding justices, the report reflects a commission whose work has concluded, as T.S. Eliot would say, “not with a bang but a whimper.”

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Image of T.S. Eliot courtesy of Wikimedia commons.