USA TODAY US Edition

Supreme Court panel under fire

Study group challenged even before first meeting

- John Fritze

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-Calif., 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, DMass., said at 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 tried 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.

Chief Justice John Roberts, when he was an attorney in President Ronald Reagan’s White House, opined in 1983 that setting a term limit of 15 years “would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence.”

Anthony Marcum, a resident fellow at the libertaria­n R Street Institute, argued term limits would raise the temperatur­e of confirmati­on fights by more frequently lining them up in presidenti­al election years.

He said advocates should focus on “increasing transparen­cy” and ensuring that Americans understand the court’s role as the nation’s top judicial decisionma­ker.

Ethics and recusals

Ideas such as a code of conduct or requiring justices to be more forthcomin­g about the reasons they recuse themselves from cases have generated bipartisan interest.

The sweeping voting rights legislatio­n House Democrats passed last month included a code of conduct for the Supreme Court, but it’s not likely to gain traction in the Senate.

Roth’s group has raised concerns about several current and former members of the court, from Associate Justice Clarence Thomas’ speaking at partisan events to Associate Justice Ruth Bader Ginsburg’s criticism of Trump, for which she apologized. Justices Sonia Sotomayor, Neil Gorsuch and Roberts haven’t recused in cases involving interests they had a financial tie to, according to Roth’s group.

Timothy Johnson, a professor of political science and law at the University of Minnesota, threw cold water on the idea of the commission’s work leading to major changes.

“I don’t mean to be a downer, but it has been accepted wisdom that the Supreme Court, because they are part of a co-equal branch, that they get to set their internal rules – period, end of story,” Johnson said. “I could see Congress trying to pass laws (about recusals), but I could also see the court trying to strike that down as unconstitu­tional.”

Biden’s commission could delve into other familiar arguments, such as whether to further open access to the court’s oral arguments. The justices have long resisted cameras and, until recently, balked at livestream­ing audio of their proceeding­s.

That changed when the COVID-19 pandemic closed public access to the court building.

Johnson speculated that Biden’s best shot to propose major changes at the court came in the first weeks of his tenure, a time dominated by the pandemic .

Now, he predicted, liberals will probably have to set the bar lower.

“I think they’re going to build small and try to change the judiciary at the lower levels,” he said, “and then hope Biden gets a couple of nomination­s over the next several years.”

 ?? J. SCOTT APPLEWHITE/AP ?? Some Democratic lawmakers have proposed adding four chairs to the nine justices’ seats on the Supreme Court bench.
J. SCOTT APPLEWHITE/AP Some Democratic lawmakers have proposed adding four chairs to the nine justices’ seats on the Supreme Court bench.

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