High court commission already facing friction
WASHINGTON – President Joe Biden’s commission to study the Supreme Court is facing political headwinds before its first meeting, underscoring the challenge advocates for change have faced for years.
Dismissed by some on the right as an effort to “pack the court” with additional justices, the 36-member group also drew fire from some quarters on the left for its composition of academics, limited mandate and six-month timeline to finish its work.
“I am a little disappointed that the commission wasn’t given a mandate that says ‘come up with recommendations,’ ” said Gabe Roth, executive director of Fix the Court, a nonpartisan group seeking term limits for justices and greater transparency at the court. “I don’t believe it’s that hard to come up with a consensus on core issues.”
One of the central questions to be studied by the commission – whether to grow the size of the court – was dealt a political blow Thursday when liberal lawmakers proposed legislation that would increase the court from nine to 13 justices.
Republicans and conservative groups erupted, and House Speaker Nancy Pelosi, D-California, quickly undercut the effort by announcing she had no intention of bringing the bill to the floor for a vote – at least for now.
During his presidential campaign, Biden promised to name the commission as President Donald Trump and Senate Republicans rushed to confirm Associate Justice Amy Coney Barrett before the election, giving conservatives a 6-3 edge at the court for the first time since the 1930s. Biden said he was “not a fan” of adding to the bench.
Biden signed an executive order April 9 that tasks the commission with studying the “merits and legality of particular reform proposals.” The White House declined to say when the commission will hold its first meeting, which would start the clock on its six-month deadline.
Carrie Severino with the Judicial Crisis Network said the commission was intended to “reward the liberal dark money groups” and predicted anything it proposed would “fit that political agenda.”
“Nothing produced by such a far-left commission has any chance of passing,” she said.
Though expanding the court is controversial, there has been bipartisan support for other changes to the federal judiciary, including the Supreme Court. Some of those ideas have been deeply intertwined with constitutional debates since the nation’s founding.
Here are a few ideas the commission is likely to consider this year:
Adding to ‘the nine’
A White House statement made passing reference to the idea that the group will study the “membership and size of the court.”
Advocates note that the court’s size is set by federal statute, not the Constitution, and that the number of justices has changed. Opponents, including some of the justices themselves, counter that the court’s size has been set for more than 150 years and adding seats would further politicize its work.
The court “is out of balance, and it needs to be fixed,” Sen. Ed Markey, DMassachusetts, said outside the Supreme Court Thursday. “Too many Americans have lost faith in the court as a neutral arbiter of the most important constitutional and legal questions that arise in our judicial system.”
Adding to the court would offset the influence of its conservatives, including the three justices that Trump appointed. Expanding the court hasn’t been attempted since President Franklin D. Roosevelt, and polls show it’s extremely divisive.
“It would erode or denigrate the independence of the judiciary,” said Paul Summers, a former Tennessee attorney general and co-chair of the “Keep Nine” Coalition, a group pushing for a constitutional amendment that would set the number of justices.
“It would erode the checks and balances of the use of power on the other two branches.”
White House press secretary Jen Psaki was noncommittal Thursday about whether Biden supports the idea of expanding the court. Biden, she said, would make up his mind after seeing the result of the commission’s work.
“He’s going to wait for that to play out and wait to read that report,” she said.
Limiting lifetime terms
Federal judges, including Supreme Court justices, hold their office “during good behavior,” a provision in the Constitution that has long been interpreted to mean lifetime tenure.
There is debate about whether that interpretation is sound – after all, the framers didn’t explicitly use the words “life term” – and whether federal jurists could serve “for good behavior” for some period of time set by Congress. Some advocates have called for an 18-year term for any new justices confirmed to the Supreme Court.
“There’s actually considerable historical support that what this means is they get to serve for the term of their appointment, and that term of their appointment could be decided by Congress,” Leah Litman, a professor at University of Michigan Law School, said during a webinar hosted by the leftleaning American Constitution Society.
Nearly two-thirds of Americans support setting age or term limits on Supreme Court justices, according to an Ipsos poll published by Reuters on Sunday. Twenty-two percent of respondents oppose limits, and the rest don’t have an opinion.
Proponents of the idea argue in part that a faster churn of justices would remove some of the political sting from confirmation battles since presidents of both parties would get more opportunities to nominate candidates.
The average time on the bench for a Supreme Court justice has nearly doubled, from 15 years before 1970 to 28 years since then, according to Roth’s research.