They studied, listened and debated, and after seven months of work, President Biden’s commission on the Supreme Court failed to recommend any big changes to the way the justices operate.
While suggesting that term limits deserve a closer look, the panel said there was “profound disagreement” over liberal activists’ proposal to expand the size of the court and give Democrats a chance to make more appointments, surmounting the 6-3 advantage held currently by GOP appointees.
The toothless final report was adopted and submitted to Mr. Biden on a unanimous vote Tuesday.
Liberal commissioners, who dominated the panel, considered the final version a victory after they managed to block efforts to come out in opposition to expanding the size of the court.
Conservative commissioners said the report was a useful look at the history of court changes and the options available, while avoiding politically tinged recommendations from Democrats upset at a court they’re increasingly failing to control.
“We must approach with great caution and skepticism any proposal that has even the potential to reduce judicial independence,” said David F. Levi, a former federal judge and now professor at Duke Law School.
Mr. Biden now must decide what to do with the report, which lays out justifications for some of the more contentious changes, but leaves him without any official imprimatur to take those steps.
The panel’s liberal members said despite the lack of recommendations, the panel paves a path for him to try to shape the court more to Democrats’ liking. And they said the current moment demands he do something.
“The hand-wringing over the court’s legitimacy misses a larger issue — the legitimacy of what our union is becoming,” said Lawrence Tribe, a professor at Harvard Law School. “To me that spells a compelling need to signal that all is not well with the court — that it no longer deserves the nation’s confidence, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.”
Expanding the court is the critical question facing Mr. Biden.
Democrats say not only that the membership is now out of “balance,” but also complain about how the court got there, with Republicans refusing to confirm a pick by President Obama in 2016, giving President Trump the chance to fill the seat in 2017, then approving a second Trump pick amid contentious debates in 2018, and rushing the process to confirm a third Trump pick in 2020.
Given those efforts, it’s not surprising people see the court as too political, according to some of the commissioners.
The court’s rulings, many of which have gone against the outcomes liberals had hoped for, fuel the calls for action.
“This is a uniquely perilous moment that requires a unique response,” said Nancy Gertner, another retired federal judge and lecturer at Harvard Law School. “One party seeks to constrict the vote, deny fair access to the ballot to people of color. The Supreme Court is enabling those efforts.”
She said that means the court has helped shape its own makeup by restricting the pool of potential voters, effectively packing itself.
The commission’s report, at nearly 300 pages, acknowledged those sentiments, but also pointed out that countries that pack the courts, such as Venezuela during the term of former leader Hugo Chavez and Turkey under Recep Tayyip Erdogan, are hardly examples of stable democracies.
“As a commission we have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the court,” the report concluded.
The size of the court — which has been set at nine justices since soon after the end of the Civil War — is a matter of law and can be changed by a Congress and a president.
Imposing term limits, another idea, is more popular with the public and is backed by many of the current court’s critics.
But it would be a tougher lift, since the Constitution seems to envision lifetime tenure. The commission’s report concluded the justices themselves likely would find any move to alter that through legislation to be unconstitutional.
“It turns out that some of the least controversial reforms, like term limits, would be among the most challenging to implement, and some of the most controversial, like court expansion, would be among the most straightforward, as a legal and constitutional manner,” Mr. Tribe said.
The action comes less than a week after the justices heard oral arguments in perhaps the biggest case in decades — a challenge to the 1973 Roe v. Wade decision that established a national constitutional right to abortion and ignited five decades of vicious political battles over the court’s role in refereeing social issues.
The sense that the court wields too much power on big decisions governing Americans’ lives crosses party lines.
Mr. Biden’s commission studied ideas for how to limit the high court’s reach, such as imposing a supermajority requirement on the justices if they seek to overturn a congressional statute or allowing Congress a specific path to override a controversial decision.
Those solutions most likely to curb the court’s power, though, “are also ones that, absent constitutional amendment, the court would most likely find to be unconstitutional,” commissioners concluded.
The best option already available is for Congress to assert its own powers, the commission suggested.