A commission set up by President Joe Biden to explore potential changes to the US Supreme Court released draft materials Thursday addressing a number of topics related to the court, seeming to find consensus in favor of term limits but appearing divided over adding more seats to the bench.
The materials released on Thursday evening, prepared by a “working group” made up of a subset of the 36 commission members, fell short of making any solid recommendations for change, but instead amounted to appraisals from subcommittee members on the issues that will be presented to the full commission on Friday for further exploration.
The commission was established in April. Biden brought up the idea of creating it while campaigning for president, as he was being pressured by fellow Democrats to take a stand on court expansion to try to bring greater balance to a bench dominated 6-3 by conservatives.
Progressives who have been pushing Biden to take concrete steps to dilute the conservative strength of the court are already expressing frustration over the commission’s newly released materials, which don’t appear to make the case for the change they’re calling for.
The materials considered four areas for the court’s reforms: “Membership and Size of the Court,” “Term Limits,” “The Court’s Role in the Constitutional System,” and “Case Selection and Review: Docket, Rules, and Practices.”
The report makes clear that the “inclusion of particular arguments in these draft materials does not constitute a Commission endorsement or rejection of any of them, and specific points of analysis or particular perspectives appearing in the drafts should not be understood to reflect the Commissions views.”
However, the commission argues in its 30-page “Term Limits” document that “there are principled reasons favoring term limits for Supreme Court Justices, as they simultaneously would preserve the value of judicial independence and ensure that the Court’s membership is broadly responsive to the outcome of democratic elections over time.”
The document states, “(T)here is no sound reason for the number of appointments made by a President to vary much based on random chance, such as when Justices leave the bench due to illness or death.”
The commission’s “Case Selection and Review” document also suggests that “the Court should consider proposals that may increase transparency, improve procedure, and generate more visible adherence of judicial ethics.”
Over 44 pages were dedicated to the membership and size of the court, laying out the history of the court and the controversy over adding justices by so-called “court packing.”
“Events surrounding the last three nominations to the Supreme Court have precipitated major controversy and sparked much more widespread calls for expansion of the Court, this time largely from some Democrats,” the document said.
Although it does not reach a firm recommendation on the matter, the report says, “As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices. The prudential question is more difficult and Commissioners are divided on whether Court expansion would be wise.”
The report goes on to lay out the pros and the cons surrounding court expansion.
“We describe the arguments that critics of the current Court offer in favor of Court expansion – arguments with which some Commissioners agree (at least in part),” the report reads. “We also explain the counter-arguments: that Court expansion, at least absent other reforms to our system of government, presents considerable drawbacks.”
After detailing how adding members could help restore the balance of the court the report also notes that such expansion could “further degrade the confirmation process.”
“There could be significant battles over any Justice added by a Court expansion measure,” the report details, and adds that a “future Senate could respond to expansion by refusing to confirm anyone.”
The commission also suggests that some changes to the Supreme Court “would reduce financial conflicts significantly (and eliminate conflicts arising from stock ownership)” among the justices – specifically noting that “Congress could act to prohibit Justices, their spouses, and any dependent children from owning individual shares in publicly traded companies, or Congress could require divestment when a conflict arises.”
Liberal advocacy group Demand Justice’s Executive Director Brian Fallon expressed disappointment at the content of the draft materials, saying “the paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several diehard conservatives who are fully content with the status quo.”
“From the beginning, the purpose of this Commission was not to meaningfully confront the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it fights other legislative battles,” Fallon continued.
The commission is expected to meet on Friday. A final report from the commission will be submitted to Biden in mid-November.
This story has been updated with further details.