Biden commission explores Supreme Court makeover

When Republicans in the Senate rushed through the confirmation of Amy Coney Barrett to the Supreme Court mere months before the 2020 election, Democrats reacted with outrage. They noted Republicans had blocked President Barack Obama’s nomination of Merrick Garland during an election year. On the left wing of the Democratic Party, progressives called for President Joe Biden to strike back by expanding the number of justices on the Supreme Court or making other reforms.

Biden ultimately agreed to look into it, launching an advisory commission for that purpose.

Last Thursday, the Presidential Commission on the Supreme Court released draft discussion materials for a public meeting it held the following day. It had collected research and arguments around four key issues: Supreme Court membership and size, term limits, the court’s constitutional role, and case selection and review. The materials, which totaled more than 200 pages and avoided making concrete recommendations, weighed the pros and cons of expanding the court to 13 or more justices or of limiting their years on the bench.

The resulting discussion at the public meeting highlighted divisions within the commission, and it suggested few changes were likely in the Supreme Court’s immediate future.

Conservatives already see the commission as politically off-balance. Biden originally appointed 38 people, mostly academics. But liberal members outnumbered conservatives by 3 to 1. That ratio further tilted when two professors resigned: A White House spokesperson confirmed the day of the commission meeting that Jack Goldsmith of Harvard Law School and Caleb Nelson of the University of Virginia School of Law left the group. Neither professor has publicly explained his reason for stepping down.

The Supreme Court has had nine justices for more than 150 years. The justices enjoy lifetime tenure due to a constitutional clause allowing them to “hold their Offices during good Behaviour”—interpreted as a lifelong appointment.

Progressives argue it is time for a change, pointing to how the Supreme Court has become a cog in the political wheel. Presidents tend to appoint justices who align with their own politics and who will appeal to the political party controlling Congress at the time. Even retirements are political statements: Justices often choose when to step down based on the current partisan makeup of Congress.

However, advocates for the status quo argue that expanding the court or imposing term limits could ultimately destabilize it and make it even more subject to political whims.

In its draft materials, the commission admitted that adding seats to the court could diversify the 6-3 conservative majority. It pointed to benefits such as improving the court’s reputation and, with a larger team, improving its ability to process cases. But the commission also warned such a move could undermine the court’s legitimacy if the public views the additional justices as political figureheads meant to balance the rest of the bench.

According to a recent Marquette poll, 29 percent of Americans said they believed the justices’ decisions were based mainly on politics rather than on the law. (In the same poll, 73 percent of Democrats favored expanding the size of the court, while only 26 percent of Republicans favored doing so.)

The commission report offered a more favorable view of term limits and said this change would have the most bipartisan support. It outlined expert recommendations of 18-year terms, staggered to allow each president two appointments every two years. The report suggested that more frequent turnover would preserve judicial independence. To change term limits, Congress would need to either pass a new statute or pass a constitutional amendment, requiring two-thirds approval from both chambers and approval of three-quarters of the states.

John O. McGinnis, a constitutional law professor at Northwestern University, argued in a Law & Liberty essay that shortened justice terms would destabilize the Supreme Court: “The court will swing this way and that depending on elections. Such judicial mobility is in tension with one of the core purposes of a Constitution—that is, to serve as a ballast, ensuring the polity has a stable foundation.” He added that justices approaching the end of their term limits might begin to “consider their next job and curry favor with those who will give it to them.”

Not all commission members approved of the working group’s characterization of the issues. Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, called the discussion materials “a disservice” because they framed issues in an overly political light. Other liberal activists said an academic commission was insufficient to change what they see as democracy-endangering judicial decisions such as the Supreme Court’s decision to allow the Texas abortion ban to stand pending litigation.

Brian Fallon, executive director of the progressive group Demand Justice, called the report an academic example of “paralysis-by-analysis.” He said the commission was simply “buying time for the Biden administration while it fights other legislative battles.”

The commission is scheduled to present a final report to Biden by mid-November.