Presidential Commission SCOTUS takes no position on expansion or term limits

In a final report the Presidential Commission on the Supreme Court of the United States backed continued audio livestreaming of oral arguments, an advisory code of conduct for the justices and more transparency for the "shadow docket."

But the group took no position on more controversial proposals to expand the size of the U.S. Supreme Court or impose term limits on the justices, reported the ABA Journal.

The Washington Post, CBS News, Law.com, Law360 and Bloomberg Law have coverage.

President Joe Biden created the bipartisan commission in April to study proposals to reform the Supreme Court. Its membership consisted largely of law professors.

The report said there was “profound disagreement” among commissioners over adding justices to the Supreme Court.

Supporters of the idea “contend that court expansion is necessary to address serious violations of norms governing the confirmation process and troubling developments in the Supreme Court’s jurisprudence that they see as undermining the democratic system,” the report said.

“Opponents contend that expanding—or ‘packing’—the court would significantly diminish its independence and legitimacy and establish a dangerous precedent that could be used by any future political force as a means of pressuring or intimidating the court.”

Although the commission took no position on term limits, it did consider how to draft a constitutional amendment to establish term limits and whether such a system could be adopted by statute. The commission also discussed arguments for and against the idea.

“Proponents of term limits argue that they would help ensure that the court’s membership is broadly responsive to the outcome of elections over time; make appointments to the court more predictable and less arbitrary; reduce the chances that excess power might be concentrated in any single justice for extended periods of time; and enhance the court’s decision-making by ensuring regular rotation in decisionmakers while maintaining judicial independence by guaranteeing long terms and lifetime salaries,” the report said.

“Opponents of term limits argue that eliminating life tenure would weaken the Constitution’s express protection of judicial independence, which could undermine the court’s legitimacy; further politicize the selection and confirmation process by requiring confirmations every two years; heighten the perception that justices are partisan or political actors; and destabilize court doctrine.”

ABA President Reginald Turner said in a statement Wednesday the ABA applauds the work of the commission.

Turner noted that the committee wasn’t asked to make specific recommendations. But its comprehensive report provided context and “thoroughly addressed the history of pertinent issues and examined the potential impacts of proposals that would change the court,” Turner said.

“An independent judiciary is necessary to ensure respect for the rule of law and confidence in our courts,” Turner said. “The ABA remains committed to upholding the Constitution, the judicial process and equal justice under the law.”

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The Biden Commission on the Supreme Court releases initial findings

 President Joe Biden’s commission on the Supreme Court released its initial findings based on months of public hearings and research, laying out arguments related to expanding the size of the court and other issues, reported NBC News.

The documents laid out various arguments around reforming the Supreme Court but made no recommendations. The commission will meet Friday to discuss the findings and begin work on a draft report that will be discussed at a separate meeting. The group is charged with presenting a final report to Biden by mid-November.

On expanding the number of Supreme Court justices, which has become a charged political issue for Democrats and Republicans, the group said they were ultimately divided. The commission laid out a number of factors to be considered, including ways it would impact the judicial system, how the political timing would affect the court's independence and the example it would set for other countries that could use it to justify tampering with their own judicial systems.

“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 materials stated.

The group said that court expansion could "undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values."

The group also detailed various scenarios for increasing the size of the court, like doing it gradually over time versus all at once, and addressed other proposed ideas like term limits and having justices associated with political parties.

Biden created the commission in April to study the number of justices on the Supreme Court along with other ways to reform the court system. He first proposed the commission when he was a presidential candidate, in response to pressure from liberals who called for adding justices following the confirmation of Amy Coney Barrett and accusations by Republicans that Biden would pack the court with liberal justices if elected.

 “It’s not about court packing. There’s a number of other things that our constitutional scholars have debated, and I'd look to see what recommendations that commission might make,” Biden said as a candidate in a CBS interview.

White House press secretary Jen Psaki said the draft materials had not been submitted to the White House for edits or feedback.

“The commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” The White House said in April.

The panel considered topics including the court’s role in the constitutional system, the length of service and turnover of justices, the membership and size of the court and case selection, rules and practices.

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MCN/USA TODAY Network: Court packing or court persuasion

Matthew T. Mangino
MCN/USA TODAY Network
April 16, 2021

Recently President Joe Biden issued an executive order creating the Presidential Commission on the Supreme Court of the United States.  The President characterized it as a bipartisan group of experts on Court reform.

A White House press release suggested the Commission’s “purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform… including the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

The phrase that got everyone’s attention was the “size of the court.”  It is no secret that Democrats want to pack the Supreme Court.  The term “packing” comes from the late 1930s, when President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age.

The Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

According to History.com, Roosevelt’s plan was seen as a political ploy to change the court for favorable rulings on his New Deal legislation.

Roosevelt’s court packing plan failed. According to Reuters, the Supreme court has nine justices and that has not changed since 1869.

As with Roosevelt, President Biden faces a similarly unsympathetic Court.  With Justice Amy Coney Barrett’s rushed confirmation only weeks before the election the Court has a decidedly right-leaning bent with six conservatives and three progressives.

Democrats in the House of Representatives and Senate have proposed legislation to expand the court.  The sponsors of the bill suggest in a press release, “Nine justices may have made sense in the 19th century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration and white-collar crime—simply did not exist and did not require adjudication by the Supreme Court … having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for 13 circuits is a sensible progression.”

For his part, President Biden has previously indicated that he is leery of expanding the court. Justice Stephen G. Breyer, one of the three progressive judges on the court, said this week that packing the court would make the court appear political and erode public confidence.

Speaking recently as Harvard Law School, Breyer said that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

Most Americans are against court packing, the Senate is split 50/50 and Joe Biden is skeptical—so why create a commission to study expanding the court?

A closer look at Roosevelt’s court packing plan may provide some insight.  FDR’s plan to add more justices never came to fruition, but according to The Hill, the court packing plan succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry.

The Court, following Roosevelt’s “failed” court packing plan, began to act more favorably with regard regulation, public works programs and other Roosevelt initiatives. As the high Court lessened the pressure on FDR the country began to lift itself from the woes of economic decline.

Could President Biden be sending a message to the Court?  Chief Justice John Roberts has not shied away from voting with his progressive colleagues and he has been an ardent supporter of the Court’s reputation.  Perhaps the President’s maneuvering on court reform is a shot across the bow to get the Court’s attention.

(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino)

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