A commission tasked with studying potential changes Supreme Court released a first look at Thursday night during its review, a draft report that is cautious when it comes to discussing proposals to expand the court but also speaks of approving time limits for judges.
The 36-member bipartisan commission, largely composed of academics, has studied judicial reform and held hearings, but it was not prosecuted for making recommendations under White House order that created it. As a result, much of the approximately 200 pages of material that the Commission released is the history and context of reform proposals.
A final report from the committee, which will next meet on Friday, is expected in about a month and will go to the president then. Even when the Commission concludes its work, however, all proposals for change will be met with serious political headwinds, especially with pending midterm elections and the chance that Democrats may lose control of Congress.
The Commission’s review was a campaign promise by the President Joe Biden made amid pressure from activists and Democrats to react after the court’s composition tilted sharply to the right during President Donald Trump’s term.
Trump nominated three judges for the Supreme Court and gave it a 6-3 Conservative majority. Democrats were particularly frustrated that the Republican-led Senate retained the former president Barack Obama from filling the seat empty for months of the conservative judge Antonin Scalia’s death in 2016. Then, with Trump in office, the Senate pressed to confirm justice Amy Coney Barrett before the court after the death of liberal justice Ruth Bader Ginsburg weeks before the election.
This led to calls from some progressives for reform, including adding seats to the court or setting time limits.
For its part, the Commission devoted a significant part of the material it released to discussing time limits for judges, which, according to the Constitution, has a lifespan. The Commission described term restrictions as the proposal that seems to have “the most widespread and bipartisan support”.
It said that a political diversity researcher has approved term limits and that a review of literature on the subject by the Commission “discovered few works arguing against term limits.”
The commission said three current judges – Chief Justice John Roberts, Judge Stephen Breyer and Justice Elena Kagan – “have noted the potential benefits of term limits.” It also quoted experts who recommended an 18-year time limit for judges and said that time limits for state supreme judges are common.
The report also notes that United States is the “only great constitutional democracy in the world that has neither a retirement age nor a fixed season for its highest judges.”
The Commission said it was divided on whether Congress has the power to create an equivalent time limit for judges by law or whether a constitutional amendment is required.
The inquiry’s report was cautious about proposals to increase the size of the court. It noted that an increase in the size of the court could create a more versatile court that can handle more cases. But it also noted that “the risks of the court’s expansion are significant”, including for the court’s legitimacy.
The Commission said that most state supreme courts have fewer seats than the Supreme Court, but that by global standards the Supreme Court is small, with France, Spain and the United Kingdom among the countries with larger supreme courts.
“Other countries have found ways to make a larger court feasible,” the commission said, noting: “However, we should be careful to assume that the US Supreme Court could easily follow the lead of its international analogues.”
Congress originally determined the size of the court to be six members. The size has been nine since 1869.
When the Commission concludes its work, calls for action from Congress and the President may increase. During the presidential campaign, Biden has repeatedly removed questions about expanding the court, and he has not said whether he supports adding seats or making other changes, including introducing time limits. White House Press Secretary Jen Psaki had said he would not weigh in on the size of the court until the Commission completed its work.
A number of groups follow closely what the committee produces. Brian Fallon, executive director of the Demand Justice progressive court group, called the draft report “not even close to waiting” and argued that the “paralysis-for-analysis” reflected here is exactly what you would expect from a commission that exists mostly academics. “He said the commission’s aim was simply to” buy time for the Biden administration while fighting other legislative battles. “
But Alliance for Justice President Rakim Brooks said in a statement that “the report will help raise awareness that reforms are not only possible but also necessary.” And Gabe Roth of the Fix the Court group said in a statement that “the draft highlights the benefits of several popular Supreme Court reforms, including time constraints, which would rebuild confidence in an institution whose public appreciation has recently collapsed.”
The panel is chaired by Bob Bauer, who served as the White House’s attorney for former President Barack Obama, and Cristina Rodriguez, a professor at Yale Law School who served on Obama’s Legal Council.
Associated Press reporter Jonathan Lemire contributed to this report.