President Biden’s commission examining possible changes to the Supreme Court took no formal stance on adding more justices to the nation’s highest bench in a 288-page final report issued this week.
Much of the section on increasing the size of the court was given over to summarizing arguments for and against expansion.
“The Commission takes no position on the validity or strength of these claims,” reads the report’s executive summary. “Mirroring the broader public debate, there is profound disagreement among Commissioners on these issues.”
As in a draft report made public in October, the 36-member panel warned that moving too quickly to change the makeup or structure of the high court could undermine judicial independence and set a bad example for nations around the world.
“[I]n recent years, we have seen democratic governments ‘regress’ or ‘backslide’ with respect to judicial independence,” the final report read. “This has come about through electoral majorities using their power to restructure previously independent institutions, including courts, to favor the political agendas of those governments.”
The report is likely to come as a disappointment to progressives who have pushed for some kind of alteration to the Supreme Court — usually by increasing the number of justices from the current 9, a practice dubbed “court packing,” or implementing a fixed term of office rather than allowing justices to serve until retirement or death.
The commission appeared more receptive to the idea of term limits than to adding justices to the Supreme Court, suggesting in the draft report that fixed terms “would advance our Constitution’s commitments to checks and balances and popular sovereignty” as well as “enhance the Court’s legitimacy in the eyes of the public” — though the draft added that they would not be “a panacea for polarization.”
The final report expanded on the issue, devoting a section to exploring the potential avenues to set term limits, discussing the possibility of justices retiring and also of allowing them a significant term before returning to a lower court.
As with court packing, the commission did not take a formal position on term limits, but “rather seeks to define and inform the debate over these questions.”
Ultimately, the report urged further discussion on whether a constitutional amendment or change in statute would be best to impose any fixed terms, noting that “[i]f Congress were contemplating imposing term limits by statute, a constitutional amendment that simply specified the size of the Court might still be advisable.”
The report also touches on other, less controversial issues, such as the use of audio or video streaming during oral arguments. The Supreme Court has made live audio recordings of oral arguments available since the onset of the COVID-19 pandemic.
“Given the Court’s longstanding opposition to cameras, a continuation of near-simultaneous audio would be a step toward enabling the media and interested members of the bar and the public to better follow the work of the Court,” it read. “Perhaps further experience with simultaneous audio will encourage the Court to try cameras as well.”
The commission voted Tuesday to approve the report, sending it to Biden’s desk. It was led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served in the Office of Legal Counsel for Obama.
Biden announced the creation of the commission in April, fulfilling a campaign promise he made after former President Donald Trump made three appointments to the high court during his four years in office — all of whom were narrowly confirmed by a Republican-controlled Senate.
“The last thing we need to do is turn the Supreme Court into just a political football [where] whoever has the most votes gets whatever they want,” Biden told CBS’ “60 Minutes” in October of 2020. “Presidents come and go. Supreme Court justices stay for generations.”
At the White House Monday, press secretary Jen Psaki declined to say how long it would take Biden to review the report.
“I would remind you all: It’s not recommendations that he either accepts or denies,” she told reporters. “He asked this diverse group of experts from a range — from across the political spectrum, from across the viewpoint spectrum to look at and assess a range of issues that have long been discussed and debated by Court experts, whether it is how cases are taken up or the length of individual justices serving or Court expansion, and to assess and provide a review of that — not to make, again, ‘here are the five recommendations; accept them or deny them.’”
With Post wires
