White House Panel Assessing Changes to the Supreme Court Makes No Recommendations

WASHINGTON — A special commission established by President Joe Biden to assess potential changes to the U.S. Supreme Court unanimously approved a draft final report Tuesday that makes no specific recommendations for change.

Instead, the 294-page document provides the president with a comprehensive analysis of the pros and cons of reform proposals, ranging from expanding the court to term limits.

Principal Deputy Press Secretary Karine Jean-Pierre told reporters traveling aboard Air Force One with the president on Thursday tha the commission that prepared the report “is absolutely unprecedented in American history” due to its scale, experise, and the important and substantive questions it was tasked to explore.

“The President is deeply appreciative of all the experts who have participated in this process and worked so hard to make their historic contributions,” Jean-Pierre said.

She also said the White House would have more to say once the president has had time to read it.

At the outset, the panel of scholars and experts note that Biden’s order did not specifically ask for recommendations, but they feel the report “does provide a critical appraisal of arguments in the reform debate.”

“Given the size and nature of the commission and the complexity of the issues addressed, individual members of the commission would have written the report with different emphases and approaches,” the panel says. “But the commission submits this report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”

The release of the report comes at a time when the public’s opinion of the high court has dropped to new lows.

A September Gallup poll, for instance, found that only 40% of Americans approved of the job the justices are doing, compared to 49% in July.

Gallup described the 40% mark as a new low compared to assessments going back to 2000.

An August poll from Marquette University Law School found 60% of adults sampled nationwide approved of how the justices are handling their jobs, while 39% disapproved and 1% had no opinion.

But Marquette noted that over the past year, approval of the Court has declined six points, from 66% in September 2020. Disapproval rose a corresponding amount, from 33% to 39%. 

In November, a Quinnipiac poll found that more than six in 10 Americans believe the Supreme Court is motivated primarily by politics, whereas only 32% said it’s motivated by the law.

That’s a six-percentage point increase from two years ago, when the same polling firm found that 55% of respondents said they thought the court was driven by politics.

And the justices themselves have taken notice. On Thursday night, Justice Stephen Breyer will speak at an event being livestreamed by the National Archives on his new book, “The Authority of the Court and the Peril of Politics.”

In the book Breyer draws upon his 27 years on the court to suggest the judiciary’s hard-won authority could be damaged by current attempts at reform.

To be clear, Biden has espoused nothing as extreme as former President Franklin D. Roosevelt’s attempt to “pack the court” with like-minded supporters in the late 1930s after justices tossed out one New Deal law after another.

Roosevelt’s plan was to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, six months, who had served 10 years or more.

By comparison, Biden’s order creating the special commission was quite mild. He simply asked for an “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”

The final report is divided into five chapters covering: history of reforms and reform debates; membership and size of the court; term limits; the court’s role in the constitutional system, and the Supreme Court’s procedures and practices.

Of all the items it considered, term limits probably received the widest support on the commission while expanding its size was deeply divisive.

In testimony before the commission, a bipartisan group of experienced Supreme Court practitioners concluded that an 18-year non-renewable term “warrants serious consideration.”

“Major think tanks and their leaders have also endorsed the concept, as have both liberal and conservative constitutional scholars,” the report notes.

“Yet other scholars and commentators have questioned the idea of altering the system of life tenure, which has been in place since the Constitution established the Supreme Court and the judicial power,” it continues.

Expanding the court was far more problematic for the panel, with a number of members expressing fear a larger court would become unwieldy and unable to quickly settle disputes of great import.

Eventually, the functioning of the Supreme Court would likely change, with it adopting a panel procedure like the one in place at the appellate level.

Size would thus necessitate panels, with a potential en banc procedure for resolving significant disputes or conflicts between panels in order to provide adequate guidance to the lower courts,” the panel says.

Other recommendations in the report range from the court adopting an advisory code of conduct to its continuing its practice of livestreaming oral arguments even after the current coronavirus pandemic subsides.

The commission was chaired by Bob Bauer, a former White House counsel to President Barack Obama, and Cristina Rodriguez, a Yale Law School professor.

In all, it collected more than 5,000 public comments, which were submitted since the body was organized in April.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.