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Biden Panel Draft Sees No Legal Obstacle to Expand Supreme Court

Oct. 14, 2021, 10:55 PM

President Joe Biden’s panel considering reforms to the Supreme Court wrote favorably of creating term limits for the high court and concluded in draft findings that while it would be legal to add justices, it may not be wise.

“Unmistakably, the overall trend over the last three decades has been toward more partisan conflict, which has affected nominations to the lower courts, as well as the Supreme Court,” the initial analysis by the Presidential Commission on the Supreme Court of the United States concludes, after recounting battles over former President Donald Trump’s three nominees to the court.

In a study of the issue of the size of the court, a subcommittee concludes that “we do not believe there is a formal legal obstacle to expansion of the Supreme Court,” but adds that whether justices should be added “as a prudential matter presents a more difficult question.”

A separate analysis indicates a consensus on the commission in support of term limits, noting it’s an idea widely supported by academic experts, many policymakers from both parties and at least three current justices.

And another subcommittee’s analysis notes there’s little transparency around when and why justices choose to recuse themselves from cases, suggesting more information should be made public about those decisions and that it should be possible to appeal them.

That subcommittee also proposed an overhaul of financial recusal laws, potentially by barring justices and their families from owning individual shares in publicly traded companies -- an idea that has consensus support among observers, the draft documents say -- or by requiring they divest from holdings when a financial conflict arises.

The commission will hold a public meeting on Friday to consider the issues laid out in the documents it released Thursday and will then begin drafting its initial report.

Demand for Reforms

Biden appointed the 36-member panel in April to analyze proposals that included expanding the court, imposing term limits on the justices, considering the court’s role in the constitutional system and the selection of cases for its docket. He did not ask to be given recommendations at the end of the process. The commission is bipartisan, though its co-chairs, Bob Bauer and Cristina Rodriguez, are both veterans of Democratic administrations.

Biden named the commission as liberals demanded reforms after Trump filled three vacancies during his four years in office. They included a seat that Republicans kept open for most of the last year of Barack Obama’s presidency and another, held by liberal icon Ruth Bader Ginsburg, that opened less than two months before last year’s election, following her death.

Read More: Biden Names Panel to Weigh Bigger Supreme Court, Term Limits

The Constitution doesn’t say how many justices the Supreme Court must have, but the number has been set at nine since Congress added a seat in 1869. Biden said during the 2020 presidential campaign he is “not a fan” of adding justices, an idea that’s been championed by some Democrats.

The commission’s work “is an assessment. It is not a recommendation,” White House Press Secretary Jen Psaki told reporters Thursday.

The president won’t review the final report until November, she added, promising that the process “will be transparent.”

The idea of expanding the court has drawn opposition even from the high court’s liberals. Justice Stephen Breyer has said adding seats would invite retaliation by Republicans and ultimately could weaken public confidence in the judiciary.

The analysis made public Thursday offers a range of suggestions for how to grow the court while abiding by historical and constitutional precedents. One option would be to add one or two seats immediately and then another one or two after the next presidential election, either by creating a rotation of justices or a panel system, while still abiding by the Constitution’s requirement of “one Supreme Court.”

Justices could rotate between serving on the Supreme Court and on lower federal courts. A panel system could function in various ways, including with one set of justices considering issues within the court’s “original jurisdiction” and another hearing appeals. Alternately, one panel could consider statutory questions while another addresses constitutional issues, the commission’s analysis says.

18-Year Terms

The commission is also exploring the idea of term limits, a concept that has drawn support in some academic circles. Advocates say 18-year terms could help lower the stakes of each confirmation battle and make the number of appointments for each president more predictable. Scholars disagree whether that type of change would require a constitutional amendment.

“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,” the analysis by the group considering term limits notes.

Read More: Supreme Court Approval Drops as New Term Brings Divisive Issues

The commission is looking into questions of Supreme Court transparency and its so-called shadow docket, the stream of emergency requests that have become a major part of the court’s work.

The draft analysis also says Congress would be authorized to write a code of conduct for the justices.

“A code of conduct for the court would bring the court into line with the lower federal courts and demonstrate its dedication to an ethical culture, beyond existing statements that the justices voluntarily consult the code,” according to the documents. “The court could internally adopt a code, or Congress could externally impose a code up on the court.”

Chief Justice John Roberts has suggested he doesn’t believe Congress has constitutional authority to impose conduct rules on the Supreme Court.

To contact the reporters on this story:
Jennifer Epstein in Washington at;
Jennifer Jacobs in Washington at;
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Alex Wayne

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