Supreme Court report bears watching

Judicial experts look at term limits, number of seats

Adraft report from a bipartisan commission studying possible changes to the U.S. Supreme Court barely made headlines last week.

The real thing, a final commission report due in a month or so to the White House, could get an altogether different reaction, depending on what President Joe Biden does with it.

Biden, acting on a campaign promise, created the 36-member commission that is made up largely of academic experts on the judiciary. Their charge is to study possible modifications of the Supreme Court and hold hearings, but they are not to make recommendations.

Hence, the 200 or so pages in this recently released draft report, is mostly about the court’s history. It presents ideas for proposals but recommends no actual proposals.

They are examining some pretty heady questions, including whether the nine-member U.S. Supreme Court should be expanded.

For the record, the Congress originally set the size of the court at six members. It has been a nine-member court since 1869.

There have been other efforts to expand the court, none of them successful.

President Franklin D. Roosevelt proposed a plan in 1937 to expand the Supreme Court to as many as 15 judges. He eventually backed off the so-called “court-packing” scheme after his administration started winning New Deal-related cases before the Supreme Court. (FDR later served long enough to have named all but two of the court’s justices.)

The idea of expanding the court more recently got popular with Democrats and activists after then- President Donald Trump appointed three right-leaning justices, giving the court its present 6-3 conservative majority.

That split has given rise to more immediate controversy over predictions that the court is on the verge of abandoning 50-year-old precedent established by Roe v. Wade in abortion cases.

But this call for judicial reform began building years ago.

The first of those three Trump court appointments came after Senate Republicans refused to consider then- President Barack Obama’s nomination of then-Judge Merrick Garland to fill a court vacancy.

The Republicans who controlled the Senate claimed they denied Obama’s appointment because of the nearness of a presidential election; but they allowed Trump’s third nomination with the 2020 presidential election looming even closer.

Understandably, the makeup of the Supreme Court was a campaign issue in both the primary and general elections in 2020.

President Biden has since been encouraged to pack the court to alter its makeup but has said he is not inclined to do that.

It isn’t the only option the presidential commission is studying.

Another issue is term limits for the nation’s top justices.

A Supreme Court justice is now appointed for life. Justices either serve until they die or until they choose to resign.

The U.S. is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court justices.

What’s more, in more recent years, presidents have been nominating younger justices to the court, anticipating longer service.

Term limits would likely result in more frequent turnover, if adopted.

This is the idea that the draft report said seems to have “the most widespread and bipartisan support.”

The assertion was immediately challenged by some of the participants, but the idea has gotten support even from three of the sitting Supreme Court justices.

Again, the commission has no recommendation, but it reported that one bipartisan group of experienced Supreme Court practitioners suggested the commission consider an 18-year term for justices.

This idea, like the possible expansion of the court, is just simmering for now. It’s part of the discussion in the bipartisan commission’s draft report.

Still unresolved, for example, is whether the Congress has the power to create the equivalent of term limits for the justices by statute or if a constitutional amendment would be required.

Keep an eye open for the final report, presumably later this year, to see what actually gets included.

Then watch for President Biden’s response to see if this court reform effort is going anywhere.

The draft report of the President’s Commission on the Supreme Court of the United States is available online at whitehouse.gov .