Biden's Supreme Court commission 'divided' on adding justices but warns of 'considerable' risk




  • In Politics
  • 2021-10-14 23:45:46Z
  • By USA TODAY

WASHINGTON - A commission created by President Joe Biden to consider structural changes to the Supreme Court is "divided" on the idea of adding justices to the nation's highest bench but warned of "considerable drawbacks" to the proposal in a draft report Thursday.

As had been expected, the 36-member panel steered clear of policy recommendations and instead offered arguments in support of and against "packing" the court beyond its current nine seats. The group also considered term limits, changes to the court's procedures and judicial ethics.

"The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court's legitimacy," the report said. "If the country and the political system were to be embroiled in repeated fights over court expansion, that alone could harm the Supreme Court's public reputation."

But the commission appeared to be more bullish on the idea of term limits, potentially set at 18 years, which it said had "widespread and bipartisan support" and would "advance our Constitution's commitment to checks and balances and popular sovereignty." Supreme Court justices currently enjoy lifetime tenure.

Several of the current justices, including Associate Justice Stephen Breyer, have indicated support for limiting the term of future justices.

The draft document lands at a precarious moment for the court, as a series of polls indicate a precipitous drop in public support for the institution - particularly among Democrats - and several high-profile decisions have placed the court's conservatives in line with Republicans on policy matters, prompting an outcry on the left.

The report also comes as the court is barreling ahead into its most politically touchy term in years, with the potential to overturn the right to abortion created in the landmark 1973 Roe v. Wade decision and upend a New York gun licensing regime making it far easier for millions of Americans to obtain and carry handguns.

Earlier: Biden's Supreme Court commission already facing resistance from the left

The commission was created in response to a push from some on the left to grow the size of the court to offset the influence of the three justices nominated by President Donald Trump, giving conservatives a 6-3 supermajority for the first time in decades.

While the draft report ostensibly doesn't take sides, it does give Biden and centrist Democrats plenty of ammunition to use if they decide not to pursue such changes.

It also drew criticism from both sides of the political spectrum.

"This was not even close to being worth the wait," said Brian Fallon, executive director of Demand Justice, a progressive group that supports changes at the court. "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."

Conservatives criticized what they framed as a "far left" drive to expand the court.

"Americans reject remaking the judiciary - especially the Supreme Court of the United States - into another partisan body," said Kelly Shackelford, president of First Liberty Institute.

Made up largely of academics, the commission noted several possible benefits of growing the court: Greater diversity, the ability to handle more cases, and the possibility of restoring "balance" in its ideology. Expansion, the report's authors write, "could bolster the institution's legitimacy and effectiveness."

Biden has sent repeated signals that he has little interest in spending political capital on increasing the number of justices on the Supreme Court. The creation of the commission itself has widely been viewed as an effort to keep that idea at arm's length, even as Republicans have used it to fire up their political base and goose fundraising.

White House press secretary Jen Psaki said this week that the president would not comment on the commission's work until it submits a final report next month.

The Supreme Court.
The Supreme Court.  

While a number of progressive groups largely dismissed the commission months ago, some advocates for structural change at the court have said they hope the group's work will at least prompt a discussion - if not about increasing the number of justices then perhaps about more incremental adjustments, such as greater transparency.

"There may not be discrete recommendations in the materials, per se, but the draft highlights the benefits of several popular Supreme Court reforms, including term limits," said Gabe Roth, executive director of Fix the Court, a nonpartisan group that advocates for transparency in the judiciary. "I expect the justices are paying attention to this discussion, and so are their friends in Congress."

But implementing term limits would be difficult. It would either require a constitutional amendment or Congress would need to pass legislation requiring that justices retire, take "senior" status with lesser duties, or move to an appeals court.

In addition to term limits, some have proposed a code of conduct, a formal recusal process for when justices beg off cases and more transparency about the court's resolution of emergency appeals fast-tracked on its so-called shadow docket, like its rulings in the Texas abortion case, on the Biden eviction moratorium and a host of COVID-19 restrictions.

Many of those ideas have had bipartisan support in the past. Earlier this year, House Republicans seemed open to requiring more information from the court on how it handles expedited cases. But that bonhomie seemed to evaporate at a hearing on the other side of the Capitol this month. There, Sen. John Cornyn, R-Texas, accused Democrats of a "shameful broadside...to attack judicial independence."

Some of the justices themselves have echoed that sentiment.

"The catchy and sinister term 'shadow docket' has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways," Associate Justice Samuel Alito said at Notre Dame Law School late last month. "And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution."

The court's expedited docket has come under criticism because of both the frequency of cases and the complexity of rulings, which are often handed down late at night without thorough explanation or a clear accounting of how each justice voted. There are also increasing questions about how much weight lower courts should give those rulings.

"Instead of waiting another month for the commission to finalize its research paper, President Biden should immediately announce a concrete plan to defend his agenda and Americans' fundamental rights from the right wing justices' assault," said Sarah Lipton-Lubet, executive director of Take Back the Court, which favors an expansion.

Contributing: Courtney Subramanian

This article originally appeared on USA TODAY: Biden commission weighs Supreme Court 'packing' in draft report

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