On Thursday, President Joe Biden’s “Presidential Commission on the Supreme Court of the United States” released its draft report on reforming the nation’s highest court.
The commission, consisting of 36 legal experts who were ordered to conduct a 180-day study on reforming the court, released more than 200 pages of “discussion materials” to serve as its draft report ahead of its first public meeting on Friday. The materials covered the ongoing debate of expanding the court, setting term limits, overriding court decisions, and more.
Among the findings, the commission members were divided on expanding the court, saying the move could be seen as a “partisan maneuver,” and could undermine the court.
“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,” the draft materials said.
The commission members appeared to be divided on the issue of term limits for justices.
Some members of the commission believe changing the composition of the court will lead to “greater uncertainty and mistrust” and worry that the “Court’s legitimacy, or perceptions of its legitimacy, will be undermined.”
However, the report added that “some commissioners believe that term limits represent an appropriately calibrated solution … that will help the Court defend our democracy against actual or potential regress.”
Additionally, the commissioners concluded that legislative overrides by Congress were “a straightforward way to reduce the power of the Supreme Court over fundamental social questions and to increase the power of Congress.”
Biden had signed an executive order on April 9 to create the commission. The commission was expected to “hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining,” and provide a report of its findings within 180 days.
Psaki told reporters ahead of the release on Thursday that the commission was reviewing the “court’s role in the constitutional system, length of service and turnover of the justices on the court, the membership and the size of the court, and the court’s selection, rules, and practices.”
She clarified that the commission was working to produce an “assessment, not a recommendation.” The commission will hold a public meeting on Friday, and their final report is expected to be delivered to Biden in mid-November, Psaki said.
The commission is led by former President Barack Obama’s White House counsel Bob Bauer, as well as Obama’s former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice, Cristina Rodriguez.
As a presidential candidate, Biden had proposed the idea of the commission amid Democrat pressure for “court packing” to add more seats to the 6-3 conservative court.
In an Oct. 25, 2020 interview with CBS’ 60 Minutes, Biden defended his idea for a commission.
“It’s not about court packing,” Biden said at the time. “There’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”
Biden said, “the last thing we need to do is turn the Supreme Court into just a political football; whoever has the most votes gets whatever they want.”
Days earlier, Biden said during the Oct. 22, 2020 presidential debate, “I would not get into court packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
Aside from expanding the court, one proposal that has been debated is term limits, in order to force justices out so they are more replaceable. Such calls for term limits came after Justice Ruth Bader Ginsburg defied calls to retire during President Obama’s administration, ultimately allowing President Donald Trump to replace her with a conservative justice upon her death.
Democrats have been urging 82-year-old Supreme Court Justice Stephen Breyer to retire from the court so Biden can nominate a replacement to be confirmed before the Senate could be potentially controlled by Republicans.
Breyer said in a speech to Harvard Law School on in April that those seeking to reform the court “whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of ‘court-packing,’ [should] think long and hard before embodying those changes in law.”
Breyer added that “it is wrong to think of the Court as another political institution,” and such a perception erodes trust.