Supreme Court commission talks of shorter term limits
WASHINGTON — A commission tasked with studying potential changes to the Supreme Court has released a first look at its review, a draft report that is cautious in discussing proposals for expanding the court but also speaks approvingly of term limits for justices.
The 36-member bipartisan commission, largely composed of academics, has been studying court reform and holding hearings, but it was not charged with making recommendations under the White House order that created it. As a result, much of the 200-odd pages of materials the commission released Thursday night are history and context for reform proposals.
A final report from the committee, which was meeting Friday, is expected in about a month and would go to the president then. Even when the commission does finish its work, however, any proposals for change would be met with serious political headwinds particularly with midterm elections looming and the chance that Democrats could lose control of Congress.
The current makeup of the Supreme Court, with a conservative majority, and key issues that are likely to be addressed by the court could shape the conversation in upcoming midterm elections. There are two growing pressure points: abortion and voting rights. The court’s decision last month not to block a Texas abortion law from going into effect has left the state with the nation’s most restrictive measures. Challenges to the law are ongoing and the court is already hearing a major abortion case in December that could reshape abortion rights nationwide. There also stand to be legal challenges to GOP efforts to restrict access to the ballot in several battleground states.
The commission’s review was a campaign promise 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 justices to the high court, giving it a 6-3 conservative majority. Democrats were especially frustrated that the Republican-led Senate kept former President Barack Obama from filling the seat left empty for months by the death of conservative Justice Antonin Scalia in 2016. Then, with Trump in office, the Senate pushed to confirm Amy Coney Barrett to the court following the death of liberal Justice Ruth Bader Ginsburg weeks before the election.
That led to calls by some progressives for reforms including term limits and demands that Biden pack the court, adding justices to it to act as a bulwark against challenges to voting rights, abortion rights and civil liberties. Biden, an institutionalist at heart, had told advisers that he was not inclined to do so, in part because
it would open the door for the Republicans to do the same when they had the chance.
For its part, the commission devoted a significant section of the materials it released to discussing term limits for the justices, who under the Constitution have life tenure. The commission described term limits as the proposal that appears to have “the most widespread and bipartisan support.”
It said a politically-diverse array of scholars have endorsed term limits and that a survey of literature on the subject by the commission “discovered few works arguing against term limits.”
The commission said that three current justices — Chief Justice John Roberts, Justice Stephen Breyer and Justice Elena Kagan — “have noted the potential benefits of term limits.” It also cited experts recommending an 18-year term limit for justices and said that term limits for state high court justices are common.
The report also notes that the United States 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.”