Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Biden’s Supreme Court Commission Members Still Await Response

Aug. 15, 2022, 8:45 AM

Former members of Joe Biden’s commission on the Supreme Court say their work had value even though the president hasn’t yet backed any changes in the eight months since they submitted the final report.

A few of the 10 former commissioners interviewed by Bloomberg Law expressed disappointment that Biden hasn’t embraced ways to overhaul how the court operates. Most said they didn’t expect the report would lead to immediate action from a president who has ruled out both term limits and court packing during his long career.

And some expected Biden to eventually talk about it.

“My expectation has always been that he would take time to review this extensive report and would speak to it at the appropriate time after he had done so,” said Bob Bauer, a law professor at New York University who co-chaired the commission.

The bipartisan 34-member commission, which Biden created under progressive pressure to back changes to the court, submitted its more than 280-page report in December after months of work. It wrote favorably of continued livestreaming of oral arguments and the adoption of an advisory ethics code and weighed pros and cons of sweeping steps like expanding the membership of the court or imposing term limits. The commission didn’t make recommendations, which commissioners note it was never designed to do.

Progressives criticized the result as overly academic said it dodged the question of how best to restructure the court. Their calls to expand the court have only grown louder after the end of the Supreme Court term in which the 6-3 conservative majority overturned the constitutional right to abortion.

White House spokesman Andrew Bates pointed to Biden’s involvement in judicial issues as a member and chair of the Senate Judiciary Committee for decades, saying it gives him a “unique perspective” on the report’s historic value and quality.

“The commission’s report was the first time in decades that this amount of wisdom was organized to discuss potential reforms of the judiciary. He is profoundly grateful to the wide range of individuals who contributed to it,” Bates said.

Here are four takeaways from conversations with commission members:

Disappointment

Two commission members said they were disappointed that Biden hasn’t commented on the report since its submission, particularly after the Supreme Court in June overturned Roe v. Wade.

Bertrall Ross, a law professor at the University of Virginia, said in hindsight he felt “a bit jaded about the whole enterprise,” which he thought offered the administration “some time to reflect and think politically about what it wants to do about the pressure from the outside to reform the court.”

The fact that the administration didn’t follow through with a policy position after the report suggests there wasn’t a desire within the White House to pursue potential changes, he said.

Kermit Roosevelt, a professor at the University of Pennsylvania Law School, said he was happy with the commission’s work but expected there would be a response from the White House.

“I assumed that the next step would be that some political actor in the administration would review the report and decide what was the most promising path forward or maybe decide that no reform was necessary or something,” Roosevelt said.

Roosevelt understands the administration has other things going on but said it would be helpful if Biden weighed in on the bills in Congress or on the urgency of the issue. The Supreme Court’s decision overturning Roe provided “an excellent opportunity to endorse court reform,” he added.

Why Nine Justices? Court Packing’s History and Future

Expectations

Most panelists weren’t expecting an immediate response from the White House and understood from the outset that the commission wasn’t asked to make recommendations for Biden.

Harvard Law Professor Laurence Tribe said Biden made it clear that the purpose of the commission “was not to make recommendations that he would then act on, but rather was to help him think through the subject.”

William Baude, a law professor at the University of Chicago, said no response from the White House is appropriate. “The commission was very thorough and delivered an incredibly well researched account of all the options, but I don’t know that it gave the administration strong reason to move any particular direction,” Baude said.

Administration Opposition

Some members noted that positions the administration has taken on structural changes to the court lowered their expectations.

Andrew Crespo, a Harvard law professor, said the administration had rejected two areas of focus. Biden came out against term limits for justices appointed for life, and Secretary of State Antony Blinken called changes to the court, like expanding it from nine members, “anti-democratic,” he said.

“It seemed clear that the administration had made up its mind about those two central issues before a report was written, so I don’t know that I expected any response to the report,” Crespo said.

At a press conference the day after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe, White House Press Secretary Karine Jean-Pierre said court expansion was “something that the president does not agree with.”

Long Time Horizon

Former commissioners say the report was aimed at an audience beyond the White House, something current and future lawmakers might use as a reference when developing proposals.

“It was meant to provide background for those who are seeking to reform the court to have the most thorough analysis of the different proposals so they can think through what might be the most efficacious to pursue and what might be the most challenging,” said Caroline Fredrickson, a visiting professor at Georgetown Law.

That’s already happening with legislative proposals around term limits in Congress, Fredrickson said.

Any major structural changes are likely to occur only after “a long period of public discussion,” said Richard Pildes, a New York University law professor. If that moment comes, “the report will be the first thing people turn to.”

Bauer, the panel’s co-chair, hopes their work will lead to changes, even if it’s far in the future.

“I’m actually of the view that eventually we will see some of these reforms over time,” Bauer said. “It may not be in my lifetime, maybe in my children’s lifetime, but I think that we will see them.”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com