Biden’s Supreme Court Commission Warns Adding Justices May Not ‘Serve Democratic Values’
A presidential commission issued a draft report on potential reforms to the U.S. Supreme Court on Thursday that expresses skepticism about progressives’ push to add justices to the court, warning that doing so could undermine the court’s legitimacy and would be viewed as a partisan maneuver that could backfire on its proponents.
The commission, made up of a bipartisan group of legal experts, issued “discussion materials” ahead of a public meeting Friday at which it will present its findings.
The commission said its members were divided about expanding the court, concluding that while there are some upsides to the move—like increasing diversity, making the court less controversial and allowing it to hear more cases—there “are significant reasons to be skeptical that expansion would serve democratic values.”
While Congress legally could add justices to the court, the commission said doing so would likely be viewed as a “partisan maneuver,” and warned any lawmaker considering backing it would be “taking a position in a partisan contest that is deeply divided.”
Expanding the court could lead to a “continuous cycle of future expansions” that ultimately makes the court into a “political football,” the commission warned, and said there are no guarantees a larger court would be more diverse or effective than with nine justices.
The commission also expressed doubts about whether other proposals involving court expansion would be legal, like having judges rotate between the Supreme Court and lower federal courts or having separate “panels” of justices consider different issues.
The commission said adding justices to the court over time rather than all at once could potentially be a better move, or having each president appoint two justices, but warned that court reforms aimed at “balancing” the court ideologically may not “be a desirable goal,” given that it may not actually reflect the will of the electorate—who may favor one party over the other and not be evenly split—and could make the justices appear more like “partisan actors.”
The commission also considered the question of whether justices should be subject to term limits, whether through a new constitutional amendment imposing them or by a statute. The report said moving to a term-limited system would involve “significant practical challenges” and could also present issues for justices’ careers after they leave the court, if they were restricted from taking certain jobs in order to stop them from ruling with their next career steps in mind. Passing a constitutional amendment could also be politically extremely difficult, the commission noted, while trying to impose term limits through Congress could present thorny constitutional issues. It could also result in Congress using that precedent as an excuse to “establish other criteria” that could restrict the court, the commission noted. The commission presented the risks of imposing term limits but also noted that some on the commission believe term limits would be an “appropriately calibrated solution” to the issue of one party “distort[ing]” the democratic process and would “help the court defend our democracy.”
“Our Supreme Court is facing a legitimacy crisis that is imperiling our democracy,” Russ Feingold, president of the progressive legal coalition American Constitution Society, said in a statement. “The discussion materials released today unfortunately fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us.”
What To Watch For
After the commission’s public meeting Friday, its final report will be delivered to the White House by November 14. White House Press Secretary Jen Psaki said Wednesday the president will not weigh in or comment until the final report is issued. If the federal government chooses to adopt any suggestions from the commission, any structural reforms to the court will likely have to be done through Congress, where Democratic lawmakers have already introduced bills that would add justices to the court or impose term limits. Whether such legislation could actually pass is unclear, however, as Republicans have opposed Democrats’ calls for “court packing” and Democrats would likely need bipartisan support for any measures to pass the Senate.
Biden first suggested he’d convene a commission to study court reforms while on the campaign trail before announcing the group’s formation in April. The commission was launched in response to growing pressure from the left for changes to the Supreme Court that would combat its conservative tilt, after Justice Amy Coney Barrett was confirmed to the court in 2020 to replace Justice Ruth Bader Ginsburg and gave it a 6-3 conservative majority. The group’s recommendations come at a controversial time for the Supreme Court, as its approval rating has dropped to a record low following controversial rulings on abortion, the eviction moratorium and immigration. Multiple justices on the court have spoken out against the perception that the court is politicized as a result, with Barrett recently saying the justices aren’t “partisan hacks” and Justice Stephen Breyer decrying the suggestion the court is made up of “junior-league politicians.”