The US Supreme Court, ENA and institutional reform

It is probably correct to say that there has never been as much pressure to reform the US Supreme Court as right now. President Biden has proposed a commission to report in 6 months on court reform, and today a number of democrats presented a bill that would lead to expanding the number of justices to 13.

This, in itself, is interesting – the Court has looked the way it does now for a long time, and you may think that reforming it should be something one does only with great reluctance, but the reality is that the way the Republicans blocked Obama’s pick of Merrick Garland has started a chain reaction that currently is expanding into a great big fireball of reform.

Now, this may be good or bad, but it does pose a serious question: how do you reform constitutional institutions? What should the principles be? How should you approach older institutions and their value?

A version of this is playing out in France, where president Macron has decided to shut down ENA – l’École nationale d’administration. This school, a kingmaker institution of sorts, is now a symbol for elitism and has been challenged to the point that one of its former students – Macron – has decided to shut it down. In effect, this means shuttering an institution that has been responsible for producing the leadership of public sector France for the last 70 something years.

How do you decide to do that? How do you think about that kind of institutional reform? The conservative response is to say you should not, you should perhaps reform at the edges and let the organization adapt, but killing it makes no sense. Yet, still, we live in a time where there is appetite for institutional reform it seems. We want to burn the old down and replace it.

You may feel that comparing the proposals to reform the US Supreme Court and the ENA is just wrong, and that they are very different, but the core of the trend we are observing here is the same – an impatience with institutions. This impatience may well be legitimate, but it is blunt.

There is little to no recognition of the value that the two institutions here have produced. No real discussion about the constitutional role both institutions have played. Maybe that is where this all needs to start, and maybe this is what bothers me – that we lack the ability to see the value of what has evolved over time, and believe that we, in our time, have the unique wisdom to build better.

There is, in this, a kind of chrono-chauvinism that I worry about, a shrinking of the political moment to this present second, and no realization that the political now stretches hundreds of years back and forward in time.

We increasingly live in a society that is ignorant of the geography of time.

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