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The big ideas from Biden’s Supreme Court commission, explained

Democratic presidential nominee Joe Biden initially dodged questions in October 2020 about whether he would pack the court before saying he opposed it. (Video: JM Rieger/The Washington Post)
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President Biden’s Supreme Court reform commission approved its final report Tuesday. The big headline is that the commission described a liberal-backed plan to “pack the court” with more justices as being fraught and contentious, while it was more bullish on the bipartisan prospects of some type of term limits.

The report is not surprising, nor is it likely to amount to much in the near term. Even when Biden announced it, it was seen as an effort to delay action on a topic Biden wasn’t really on board with — having repeatedly punted on court-packing. Passions have since subsided as he hoped.

But there is little question this topic will come up again, particularly with the newly conservative Supreme Court primed to potentially roll back abortion rights and amid declining faith in the court as a neutral arbiter of the law.

Below, we summarize four of the main proposals in the report, with the leading arguments for and against them.

1. Court-packing

The most compelling argument for it: The GOP’s violation of norms in 2016 and 2020 and the need to check it.

Specifically, this involves Republicans making a historic decision not to give President Barack Obama’s nomination of Merrick Garland a hearing in 2016, citing the coming presidential election, but then quickly confirming Amy Coney Barrett under similar circumstances in 2020 when it benefited them.

The report doesn’t take a side on whether this was hypocritical; it cites GOP arguments that Democrats had also suggested politically expedient tactics on such nominations. But it notes that proponents of court-packing describe this as a “dangerous precedent” that needs to be addressed.

“Others emphasize that a failure to respond to what they regard as confirmation ‘hardball’ by Republicans since 2016 — as well as a failure to advance expansion as a viable option in the political process — might encourage future aggressive measures in the confirmation process, such as a refusal to hold hearings on any judicial nominee put forward by a President of the opposite party,” the report says

It adds, “On this account, a significant reform such as Court expansion may be needed to calm the controversy surrounding the Court, by attaching consequences to the Senate’s actions during the Trump years in order to deter future conduct of this kind.”

The most compelling argument against it: The law of unintended consequences — including for democracy.

“For opponents, the United States’ fidelity to this norm has particular significance in light of developments in other parts of the world where manipulation of the composition of the judiciary has been a worrying sign of democratic backsliding,” the report states. It runs through examples of court-packing in countries such as Argentina, Venezuela, Turkey, Hungary and Poland.

It adds: “By contrast, these critics argue, stable democracies since the mid-twentieth century have retained a strong commitment to judicial independence and have not tended to make such moves. For these opponents of expansion, it is important that the United States remain firmly in the ranks of democracies standing behind this commitment.”

In other words, however bad the problem, what if the supposed solution is worse?

2. Term limits

The most compelling argument for it: The lack of term limits is unique in the United States, and the proposal is more bipartisan than all these other ideas.

“The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court Justices,” the report says. “Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.”

It adds, “Currently, the number of appointments available to a President can vary greatly because of random chance.”

It summarizes, “In testimony before the Commission, a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year nonrenewable term ‘warrants serious consideration.’”

The most compelling argument against it: In addition to the hurdle of potentially requiring a constitutional amendment, it could further the perception of justices as partisans and pressure them to act accordingly.

“Because [opponents] believe that term limits could be perceived as founded on the view that judges are partisan, political actors, opponents of term limits believe that inestimable damage could be done to the federal courts by adoption of this reform proposal,” the report states.

And: “If two seats on the Supreme Court are guaranteed to open every four years, the Court might become even more of an issue in electoral politics than it currently is.”

Finally: “Opponents of term limits further believe that even long, nonrenewable terms could undermine judicial independence by virtue of the fact that at least some Justices would have to consider what they would do after their terms expire.”

3. Stripping the court of certain powers

The most compelling argument for it: The court has become too influential in deciding major issues of the day, when those calls should be left to elected legislators.

“For these critics, the Court’s fundamentally ‘countermajoritarian’ character is in tension with the basic commitments of a democracy; an unelected judiciary, in this view, acts undemocratically when it invalidates the acts of democratically elected representative bodies,” the report states.

It adds, “For some, the problem is also that Supreme Court Justices are nearly always drawn from the elite and are therefore insufficiently representative of the population as a whole.”

The most compelling argument against it: The difficulty in putting it into practice, along with the impact.

If you read between the lines, the report might be even more skeptical of this less-discussed idea than of court-packing.

“Though the academic debate has been robust, no recent commentator has offered a programmatic blueprint for jurisdiction stripping,” the report states.

It adds that “one cannot assess the constitutionality of jurisdiction stripping in the abstract. Congress certainly has some power to impose limits on the appellate jurisdiction of the Supreme Court. However, the extent of that power is unclear, and the constitutionality of specific proposals would depend upon the particular details of those proposals.

“The Commission does not have a firm view on the overall merits of jurisdiction stripping, but we are skeptical that the aim of promoting more democratically accountable control of public policy can be achieved solely by limiting the jurisdiction of the Supreme Court.”

4. Restricting the ‘shadow docket’

The most compelling argument for it: These types of orders have increased in recent years and effectively decided very substantial issues without written decisions or hearings.

This is an issue that has picked up even since Biden appointed the commission. It involves the court’s increasing use of its “shadow docket” — i.e. making momentary decisions without much explanation or even without disclosing who voted how.

“Emergency orders breaking down 6-3 or 5-4 along ideological lines have multiplied in recent years, indicating that the Court increasingly is deciding contested legal questions through cursory and relatively nontransparent emergency procedures,” the report states. “During the 2017 Term, there were five orders from which at least three Justices publicly dissented; during the 2020 Term, there were 29 such orders. This increase has occurred even while the merits docket has remained at historically low levels, and during the 2019 Term there were nearly as many 5-4 decisions among emergency rulings as on the merits docket.”

The most compelling argument against it: That this is a symptom not of the court itself but other factors.

“Those who defend the Court’s recent use of emergency rulings argue that the problem — if there is one — is not of the Court’s own making,” the report says. “As in the lower courts, emergency applications come to the Court from parties seeking urgent relief. The consequential nature of the interests at stake is precisely why the Court must act quickly, lest significant rights be left unprotected or harm imposed on the parties and the public while the full judicial process unfolds. Deciding important issues using a truncated process, on this view, is not illegitimate; it is the nature of emergency adjudication.”

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