WASHINGTON — The most complete look yet at the ongoing work of President Biden’s Supreme Court commission showed its continuing interest in imposing terms limits on justices, while also noting “profound disagreement among commissioners” over whether court expansion would be wise.
Ahead of a public meeting on Friday, the bipartisan panel of legal experts released on Thursday a set of “discussion materials” that amount to draft chapters for its final report to Mr. Biden next month.
Their release is the latest development in the complex and politically sensitive debate over whether to seek fundamental changes to the Supreme Court. That debate has intensified since Republicans blocked President Barack Obama’s nominee to the court in 2016 and erupted even more fully after President Donald J. Trump succeeded in placing three justices on the court, entrenching a six-to-three conservative majority even though Republicans have lost the popular vote in seven of the last eight presidential elections.
Against that backdrop, some liberals began pushing Democrats to support Congress expanding the number of justices on the court so that a Democratic president could make a flurry of appointments to rebalance it ideologically. In October 2020, during the closing weeks of the presidential campaign, Mr. Biden avoided taking a clear stand by saying he would set up a panel to study judicial reform issues.
Mr. Biden’s charge to the panel was to offer analysis but not recommendations, and the group is taking no position on the various ideas it is analyzing.
Instead, the draft materials lay out options with the goal of promoting a constructive national debate, while acknowledging meaningful disagreements.
It is not clear what steps, if any, Mr. Biden might take once he receives the commission’s final report next month, even as the court considers blockbuster cases that have many progressives on edge, including a challenge to the constitutional right to abortion established in 1973 by Roe v. Wade. Any substantial change to the court would require an act of Congress or a constitutional amendment.
The materials released on Thursday reflected input from a meeting last month, which was the first time that the majority of the commissioners had seen earlier drafts produced by smaller groups. Some of the modifications were aimed at more fully explaining the arguments for and against expanding — or packing — the court and about imposing term limits on Supreme Court seats.
The materials, however, suggest that while both ideas have their supporters and detractors, expanding the court is the far more contentious of the two.
For example, some liberals oppose breaching the norm against changing the court’s size that developed after the failure of President Franklin D. Roosevelt’s “court packing” proposal, in part because a conservative Senate and president could also choose to re-tilt the court by expanding it.
“This uncertainty leads even some who fundamentally disagree with aspects of the current Supreme Court’s jurisprudence to believe it is better to preserve the Court’s long-term legitimacy and independence than to open up the Court to be packed by potentially dangerous and even authoritarian political movements going forward,” the commission materials said.
By contrast, while the revisions flesh out a section explaining arguments against imposing term limits on the Supreme Court, the discussion materials also stress that the idea of staggered, 18-year terms — with a seat opening every two years — has enjoyed support from both liberal and conservative scholars.
Testimony taken by the commission, including comparing how states and other countries handle their judiciaries, showed that the American system in which federal Supreme Court justices serve for life — meaning they can cling to office into their geriatric years, and make the opening of seats via deaths erratic and unpredictable so that some presidents get many appointments in a term and some none — is highly unusual.
“The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term limit for its high court justices,” the materials said. “Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those that do not have term limits, such as the Supreme Court of the United Kingdom, typically impose age limits.”
The revisions to the material also go into significantly greater depth about different options for implementing term limits. These include various ways to phase in the system while there are still justices on the Supreme Court who were appointed to life-tenured seats — a process that could take a generation or two — and how to handle situations in which justices may die or step down before their terms are up.
And the materials explore whether Congress should try to impose such a change by enacting a statute, whether the more difficult step of putting forward a constitutional amendment would be necessary or wiser — or whether neither approach would work.
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“Members of the Commission are divided about whether Congress has the power under the Constitution to create the equivalent of term limits by statute,” the materials said. “Some believe that a statutory solution is within Congress’s powers. Others believe that no statutory solution is constitutional, or that any statute would raise so many difficult constitutional and implementation questions that it would be unwise to proceed through statute. Opponents of term limits cite these complexities as reasons to eschew term limits altogether.”
While the panel’s eventual report will be addressed to Mr. Biden, some of its materials laid out ideas the justices might consider about their internal rules and practices.
For example, the materials analyzed the Supreme Court’s increasing practice of resolving of major issues through its so-called shadow docket, which it uses to deal with matters that come before it on an emergency basis.
While shadow-docket cases can often be of substantial importance, they are typically handled quickly, without full briefings and oral arguments. The commission weighed various possible causes and laid out some potential changes, including not allowing rulings using such stunted procedures to be considered binding precedents.
The discussion materials also examine whether Supreme Court justices should be subject to a code of judicial ethics, like lower court judges already are. The commission explored whether Congress ought to impose one on them — which could raise constitutional issues — or whether they ought to adopt one for themselves.
The materials also addressed the recurring question of whether the justices should allow cameras in the courtroom to broadcast their arguments, which the court has resisted. Noting that during the Covid-19 pandemic, the court has allowed the public to listen to an audio livestream of its arguments, the report suggested keeping that in place when the crisis ends.
“Given the court’s longstanding opposition to cameras, a continuation of near-simultaneous audio would be a step forward and would better enable the media to cover the court’s work, while enabling interested members of the bar and the public to better follow the work of the Court,” the materials said. “Perhaps further experience with simultaneous audio will encourage the court to try cameras as well.”
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