Washington — President Biden’s commission on the Supreme Court unanimously voted Tuesday to send its report examining reforms to the high court to his desk, concluding nearly seven months of work that was set against the backdrop of pressure from progressives to expand the number of seats on the court.
The 34-member commission released its report Monday evening, which stopped short of recommending structural changes to the Supreme Court. Instead, the panel laid out in detail the arguments in favor of and against growing the court’s membership and instituting term limits for justices, as well as the possible vehicles for implementing the reforms.
The commission did, however, say it favors the court continuing to livestream audio of oral arguments, which it said “would enable the media and interested members of the bar and the public to better follow the work of the court.” The Supreme Court has been providing live audio of its argument sessions since the COVID-19 pandemic forced the courtroom to close its doors to the public last year and will continue doing so through its February session.
The bipartisan panel also endorsed adoption of a code of ethics for Supreme Court justices, which it said would bring the high court in line with federal judges in the lower courts and “demonstrate its dedication to an ethical culture,” according to the report.
The commission convened for its final meeting Tuesday, during which it discussed its examination of reform proposals and voted on submitting the report to the president. Many members of the panel praised its work and the thoroughness of the report, though there were deep fissures as to the merits of possible structural changes, namely expanding the court’s membership.
Some commissioners warned adding seats would undermine the Supreme Court’s independence and harm its legitimacy, while others said the high court has problems exacerbated by recent confirmation battles and court decisions that must not be ignored.
“Some will be disappointed that there are no recommendations to this report, that there is not a consensus document, but that was not our charge,” Nancy Gertner, a former federal district court judge, said in remarks, adding, “this is a uniquely perilous moment that requires a unique response.”
The commission’s lack of policy recommendations is likely to frustrate progressives, who have warned of eroding public confidence in the court since former President Donald Trump named three justices and the need for structural reform to protect its legitimacy. But from the outset, the panel has been clear its mandate was not to issue specific recommendations, and instead to evaluate the merits and legality of reform proposals at the center of public debate.
Mr. Biden established the Supreme Court commission in April in response to calls from the Democratic Party’s liberal flank to expand the high court to dilute the power of its 6-3 conservative majority. The president said on the campaign trail he is “not a fan” of adding seats to the Supreme Court, but the issue has continued to gain traction, particularly following the death of the liberal Justice Ruth Bader Ginsburg and Trump’s swift appointment of Justice Amy Coney Barrett, who was confirmed just days before the election.
As the Supreme Court has waded into politically charged issues including the Second Amendment and abortion this term, progressives have pressed with growing urgency the need to expand the court beyond its current nine members.
But in a section of its 288-page report on the membership and size of the Supreme Court, the commission said there is “profound disagreement” over whether adding seats would be wise, though it acknowledged Congress does have broad authority to change the court’s size.
“As a commission we have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the court,” the report said.
On the issue of term limits for Supreme Court justices, which currently have life tenure, the commission studied the prospect of 12- and 18-year terms and noted the U.S. stands alone among major constitutional democracies with neither a mandatory retirement age nor fixed term limit for high court members.
Panel members examined pursuing term limits through constitutional amendment or statute, and warned that a statute imposing term limits would likely be challenged in federal court.
“The court would have to decide on the constitutionality of a law that restructures the court itself. There might also be strong disagreements about which justices should participate in the decision,” the report states. “No matter which way the court came out on the question, these commissioners worry that the court’s legitimacy, or perceptions of its legitimacy, would be undermined.”
Over the course of its seven-month review, Mr. Biden’s commission held six public meetings and heard from 44 witnesses on a variety of topics. The commission also received 7,000 comments from the public, members of Congress and advocacy groups. Before compiling its report for the president, the panel released discussion materials, which were compiled and adapted to form the final product that will go to Mr. Biden.
While the commission conducted its work, the Supreme Court has convened for a blockbuster term with guns, abortion, the death penalty and religious liberty on the docket. The court could also decide to take up a case involving affirmative action.
In arguments last week over a Mississippi law banning abortions after 15 weeks, the court’s six conservatives appeared poised to uphold the measure, which would give the green-light for states to impose more restrictions on abortion. It also appears likely that the high court will strike down a New York law that limits who can carry a handgun outside the home for self defense.
