A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices.
In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document.
“I’m more convinced than ever that change is necessary,” said retired federal judge Nancy Gertner, a nominee of President Bill Clinton. “The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy.”
Constitutional law expert Laurence Tribe said he had come to embrace the idea of expanding the bench because “all is not well with the court,” which he asserted, “no longer deserves the nation’s confidence.”
“Even if expanding it would momentarily shake its authority,” Tribe said, “that risk is worth taking.”
Two other former federal judges who were nominated to the bench by Republican presidents expressed concerns about proposals to limit the tenure of justices and to narrow the court’s jurisdiction.
“I reject the premise of some that the current Supreme Court represents a threat to our democracy,” said Thomas B. Griffith, who recently retired from the U.S. Court of Appeals for the D.C. Circuit. “We must not sacrifice the federal judiciary to partisan impulses.”
It is not known whether the Biden administration will act on any of the policies detailed in the report, which does not recommend a certain path to follow, but lays out arguments on either side.
When asked about Biden’s plans for responding to the report, White House press secretary Jen Psaki said Monday that the president would review the findings, but there is no definitive timeline for action.
“It’s not recommendations that he either accepts or denies,” Psaki told reporters. “He’ll have to review it first and I don’t think we’re going to set a timeline for what that looks like and what it will mean after that.”
Calls for overhauling the court began after the Republican-controlled Senate blocked President Barack Obama’s nominee in 2016 and found renewed urgency after the Senate rushed through the nomination of Amy Coney Barrett to replace the late liberal Justice Ruth Bader Ginsburg, who died last year.
The Supreme Court’s approval rating among the public has dropped to a new low, prompting some justices to come forward and to defend its independence as they consider highly contentious cases involving gun rights, religious freedom and abortion.
The Supreme Court’s liberal justices warned last week in debating Mississippi’s 15-week abortion ban that the court’s reputation would be severely damaged if it were to overturn the long-standing constitutional right following a change in the court’s membership.
Gabe Roth, director of Fix the Court, said he never expected the commission to endorse one structural reform proposal over another, but that “it’s clear from the language of the report that the Commissioners, much like the American people, are much more sanguine on term limits than court expansion.”
“I don’t expect President Biden to endorse any structural reforms after the final report comes out, though I do hope the White House takes a look at the bipartisan proposals out there on judicial ethics, financial disclosure and live-streaming and puts some political capital behind these popular, pro-transparency fixes.”
Liberal lawmakers continue to back legislation that would expand the court’s size, a move Republicans consider court-packing.
Former Democratic Sen. Russ Feingold (Wis.), president of the American Constitution Society, said Tuesday that the commission’s report “offers nothing new.”
“We knew and still know the solution to the Court’s legitimacy crisis — meaningful and urgent #SCOTUS reform,” he wrote in a tweet. “Time is of the essence as this Court makes clear it intends to thwart our constitutional rights.”
Among the proposals the commission considered are term limits for justices, who currently have life tenure and often serve for decades. Until the late 1960s, the average term was 15 years, but has now increased to about 26 years. Justice Clarence Thomas, the longest serving justice, joined the bench 30 years ago.
Proposals include staggered 18-year terms that would make appointments more predictable by ensuring that all presidents have the opportunity to nominate two justices in each term they serve. The report, which takes no position on the proposal, cites testimony from a group of Supreme Court practitioners who concluded that an 18-year nonrenewable term “warrants serious consideration.”
Should Congress seek to impose term limits, the commission suggests a constitutional amendment would be the preferred approach rather than a change in statute. The report cautions that any change driven by lawmakers could face a constitutional challenge to be decided by the Supreme Court, raising questions about whether the justices could even review such a case.
“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,” the report states.
The commission also concludes that Congress has broad authority to increase the number of justices but takes no position on expansion, noting the “profound disagreement among commissioners on this issue.”
In recent months, the court has been criticized for its handling of emergency requests through what has come to be known as the “shadow docket.” The report includes several suggestions for enhancing transparency and says the justices would benefit from “providing insight into its reasoning, reinforcing procedural consistency, and avoiding any possible appearance of arbitrariness or bias.”
The commissioners also agree that the court should adopt an advisory code of conduct that would “demonstrate its dedication to an ethical culture” and continue live-streaming audio of oral arguments, which began during the coronavirus pandemic, so that the public can better follow its work.
Seung Min Kim contributed to this report.