The commission set up by President Joe Biden to look at potential reforms to the Supreme Court has released its first draft report five months after it was first tasked to tackle the thorny issue. While the finalized report is likely to undergo some changes, the stark message that packing the court is essentially a non-starter may disappoint Democrats who had hoped to reset the judicial balance.
Though the commission states plainly that it believes adding justices would be entirely consistent with the Constitution, it does not conclude that this would alleviate the issues it was set up to tackle. The consideration to add more justices to the bench was ultimately deemed futile. The report said:
“There are also reasons to doubt that Court expansion necessarily would produce benefits in terms of diversity or efficiency … There is no guarantee that a larger Court would be drawn from a more diverse group of individuals. And a larger court may be less efficient than the current complement of justices.”
However, this conclusion was not unanimous. Members of the commission were “divided on whether court expansion would be wise,” the report notes. Yet the overall feeling was that “Court expansion is likely to 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.”
Perhaps unsurprisingly, the panel placed a high value on the ideas of diversity and equity. It wrote, “Decisions by a more diverse judiciary might be more informed … More generally, a Court that was drawn from a broader cross-section of society might be viewed as more acceptable to the public.”
One area of reform to which the commission was more open was that of imposing term limits on justices. The report suggests that limiting the time spent on the bench “would advance our Constitution’s commitments to checks and balances and popular sovereignty” and could “enhance the court’s legitimacy in the eyes of the public.”
Another recommendation made was to operate a “rotating” system that would – as a byproduct – expand the number of justices in a novel way. “Under a rotation scheme, judges would rotate between service on the Supreme Court and the lower federal courts; some subset of these judges would constitute “the Supreme Court” in a given case or controversy,” the report reads.
Yet the authors also point out that such a scheme could face a constitutional challenge, as Article III, Section 1 states that “[t]he judicial Power of the United States, shall be vested in one supreme Court,” rather than a revolving series of justices.
Which Way the Wind Blows
This draft report will likely be seen as a blow to Democrats who had hoped to upset the 6-3 conservative majority currently sitting on the court. President Biden is expected to make public comments on the commission’s recommendations after the finalized report is released on November 14. White House Press Secretary Jen Psaki noted that “Our objective here is to allow for this process, made up of a diverse range of experts and voices, to move forward and represent different viewpoints,” which gives little indication of whether the administration will listen to the panel’s suggestions.
While Republicans may cheer this first draft report, there are more to come, and the motivation and potential bias behind the recommendations could prove cause for concern. The bibliography consists of press reports heavily weighted to left-leaning tomes including HuffPost, The New York Times, Slate, and other such Democrat-favoring outlets.
This was perhaps not the homerun Biden was hoping for, but it is just the starting whistle on a game that will play out over the next few years. Maybe the final recommendations will be ready to roll just in time for the next presidential election; a wholesale reform of SCOTUS would be a very, very powerful campaign message for a party fighting to hold on to power. The first report from the President’s Commission on the Supreme Court of the United States is available to read in full here.
~ Read more from Mark Angelides.