The final report of the Commission on the Supreme Court was approved by President Biden earlier today. Although the final Report is not favorable towards court-packing and term limits, it does endorse the earlier “discussion material” that was released in September. I have written about this here. The Commission does not endorse any reform recommendations, except for the possibility of continuing to provide public access live audio of Supreme Court oral argument.
The final Report, relative to the discussions materials is slightly less critical of court-packing. Chapter 2 provides a detailed overview of the arguments for and against “court expansion” (including a few that advocate increasing the size of the Court for reasons other than changing its ideological composition) and notes that “there is profound disagreement among Commissioners on these issues.”
I believe the Commission’s summary against court-packing (pp. I think the summary of court-packing (pp. 79-84) contains stronger arguments than its overall case. 74-79). Well, I’m a long-time opponent of this idea. You can read the entire report and make your own judgments.
However, the Commission rejects any arguments that court packing is illegal. This includes those made by Randy Barnett in his testimony before Commission. Joshua Braver also responded to Randy. Although Michael Rappaport and Randy Rappaport offered strong arguments for the opposing side, the Commission reached the same conclusion. Although I wish they were correct, so far I am not convinced.
The Report provides an impartial overview of both the pro and con arguments for term limits. It is similar to the pre-discussion materials in that it highlights the broad support for the idea and contrasts it with court-packing’s highly divisive nature.
Among the proposals for reforming the Supreme Court, non-renewable limited terms—or “term limits”—for Supreme Court Justices have enjoyed considerable, bipartisan support. Advocacy groups and non-profit organizations as well as membership organisations have supported term limits. An experienced group of Supreme Court lawyers, including bipartisans, testified before the Commission that they believed a term limit of 18 years was “worth serious consideration”. The concept has been supported by major think tanks, their leaders and both conservative and liberal constitutional scholars. Two groups were formed by the National Constitution Center to create their own suggestions for improving the Constitution. They consisted of both “conservative,” and “progressive,” scholars. Other scholars and commentators, however, have raised concerns about the possibility of altering life tenure which was in effect since the Constitution established Supreme Court Justices and the judiciary power. [notes omitted].
The report discusses the practical challenges involved in designing term limits. It also addresses the question of transitioning from the existing system to the one proposed. These are the issues that proponents must address, even though I don’t support term limits. In the Report, it is noted that there are a variety of opinions within the Commission on whether term limits should be amended by the Constitution or can be adopted solely through statute. A constitutional amendment would be necessary to end life tenure as it is currently enacted by statute. This would create a dangerous precedent.
The Report goes over a wide range of other possible reforms to the Supreme Court, including jurisdiction-stripping, reforms to the “shadow docket,” the possibility creating a code of ethics for the Court, and much else. It provides an in-depth overview, as well as critiques, of various reform ideas and issues. This Report will prove to be an invaluable resource for legal commentators and scholars who are interested in these topics.
The Report won’t generate significant political momentum in favor of major reform. It is clear that the Commission has resisted the endorsement of court-packing, which puts an end to any notion it would provide a boost for such reform plans. Based on the composition of the Commission (which also included court-packing skeptics), that’s precisely what I predicted.
It was my hope that the Commission could instead give a boost to term limits. It seems impossible that this will happen. The Report does not seem to support the idea. President Biden has recently reaffirmed his opposition to this proposal.
Both court-packing and term limits will be a topic of political discussion for some time. However, neither of these options looks like it will be able to move forward in the near future.
Even though the Commission Report may not have much political influence, it is possible that court-packing and other reforms will be boosted by the Supreme Court’s decreasing popularity. It was something I considered in October. However, it seemed unlikely that court-packing would happen anytime soon. These points are still valid to me, especially because 1) Biden is clearly not a pro-packing member of Congress and 2) Biden’s popularity is at least partially offset by Bidens’s and 4) there’s a chance that the Court’s public image might rebound as it has done several times over the past two decades.
If the Court rules in your favor, will things be different? Roe V. WadeWhat about next year? This is a subject I plan to address in another post when the time allows. Let me conclude by stating that although the Report of the Biden Commission is valuable, it does not have any potential to mobilize action.
It is possible that this outcome was what Biden originally intended. Biden was reportedly the first to suggest the idea for a Supreme Court commission, in October 2020.[e]Presidents are known to fixate a commission when necessary. It is not “Would like to prioritize a particular issue.” Supreme Court reform was not included on President Obama’s Priorities List.