Biden’s Supreme Court commission cautions against increasing number of justices



President Biden’s commission examining potential changes to the Supreme Court released preliminary documents Thursday warning that increasing the number of justices all at once would likely deal a hammer blow to the court’s legitimacy.

“As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices,” read one document released ahead of a scheduled Friday meeting of the commission. “The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise.”

The commission noted that some of its members agree “at least in part” with arguments for increasing the size of the Court, but added that other members — including those critical of the current bench — believe “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.”

The panel added that such a move could also set a bad example for other countries by weakening “national and international norms against tampering with independent judiciaries.”

The commission did not rule out the possibility that the size of the Supreme Court could be increased over a certain period of time, such as successive four-year presidential terms. However, it added that the benefits of such a move were “uncertain,” since it likely would not satisfy those pushing for immediate expansion.

Progressives have long advocated for some kind of alteration to the Supreme Court — whether by increasing the number of justices from the current 9 or implementing a fixed term of office rather than allowing justices to serve until retirement or death.

Those demands grew louder after former President Donald Trump made three appointments to the high court during his four years in office — all of whom were narrowly confirmed by a Republican-controlled Senate.

The commission did favor the idea of justices serving term limits as a potential change to the court.
The commission did favor the idea of justices serving term limits as a potential change to the court.
AP Photo/J. Scott Applewhite, File

The commission noted that such calls are often motivated by either “the perceived mismatch between the ideological composition of the Court and the views of the public as reflected in election outcomes” or a “desire for partisan or ideological balance”. However, the commission noted, “it is far from clear that ideological balance is in and of itself a desirable goal.”

The commission appeared more receptive to the idea of implementing term limits for Supreme Court justices, suggesting that they “would advance our Constitution’s commitments to checks and balances and popular sovereignty” as well as “enhance the Court’s legitimacy in the eyes of the public” — though it added that they would not be “a panacea for polarization.”

Biden himself has been noncommittal on whether he supports expanding the Supreme Court, a concept often referred to as “court packing.” He promised to create the court reform commission while a presidential candidate last year, telling CBS News’ “60 Minutes” that he would ask them for “recommendations as to how to reform the court system because it’s getting out of whack, the way in which it’s being handled and it’s not about court packing.”

“The last thing we need to do is turn the Supreme Court into just a political football [where] whoever has the most votes gets whatever they want,” Biden said in the same interview. “Presidents come and go. Supreme Court justices stay for generations.”

Conservatives had expressed fear that the 36-member commission would recommend sweeping changes to the high court, despite Biden’s promise that it would be bipartisan in nature. Left-wingers, meanwhile, slammed Biden’s commission plan as a way for him to punt on the question of reform.

Mark Joseph Stern, of Slate magazine, tweeted Thursday that the commission discussion materials were “a gift to the GOP.”

“It assumes that today’s Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy,” he claimed. “Republicans must be thrilled with this outcome.”

Earlier Thursday, White House press secretary Jen Psaki described the commission’s release as “an assessment; it is not a recommendation.”

“What they are looking at and examining are the Court’s role in the constitutional system, the length of service and turnover of the justices on the Court, the membership and the size of the Court, and the Court selection rules and practices,” she said.

The commission is scheduled to submit a final report to Biden next month.


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