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White House Supreme Court Commission Backs Modest Changes (3)

Dec. 6, 2021, 11:34 PMUpdated: Dec. 7, 2021, 2:28 AM

The White House commission examining changes to the U.S. Supreme Court embraced continued livestreaming of oral arguments and the adoption of an advisory ethics code, but stopped short of endorsing more sweeping steps like expanding the membership of the court or imposing term limits.

The draft final report released Monday evening comes a day ahead of its last scheduled meeting where the commission is expected to vote on its findings before sending them to President Joe Biden.

Progressives had feared little would come from the commission, which they viewed as a way for Biden to defuse election-year pressure and avoid backing changes to the institution.

Instead, the more than 280-page commission report considers the pros and cons of each suggested change—everything from term limits and “court packing,” to efforts to strip the court of the authority to hear certain cases or require a super majority to overturn federal laws.

The commission was comprised largely of academics, though there were notable exceptions including former federal appellate court judge Thomas Griffith and civil rights attorney Sherrilyn Ifill. It originally had 36 members, but two conservatives dropped off before the final report was adopted.

Expansion, Term Limits

The panel said there was “profound disagreement” among members regarding possibly adding justices to the nine-member court. It cited arguments from proponents who said doing so was necessary to better align the court’s jurisprudence with public opinion and opponents who contend expansion would make it more political and undermine key functions.

“We do not seek to evaluate or judge the weight of any of these arguments, and the Commission takes no position on the wisdom of expansion,” the members said.

On term limits, the commission noted that “life tenure is virtually unique to the U.S. federal judiciary,” out of step with both the states and other countries. But opponents worry that term limits will undermine judicial independence, making the judiciary more susceptible to public pressure.

Also, term limits and other ideas to alter the court’s composition beyond expansion are not “clearly foreclosed by the Constitution,” the report said. But they “may present more serious constitutional questions than basic Court expansion” and “may offer uncertain practical benefits.”

Ethics, Livestreaming

The commission said adopting an advisory code of conduct “would be a positive step on its own, even absent binding sanctions.”

The justices aren’t formally tied to the same ethical code of conduct that other federal judges must follow. But the commission did note that high court members do consult the standard and follow it. The justices are also not subject to the judicial disciplinary system.

The court has been under pressure from some in Congress and outside groups to formally adopt an ethics code following harassment and other scandals involving lower court judges, and to raise transparency relating to financial and other disclosures.

Livestreaming was the only change that appeared to garner support, which the commission said “would enable the media and interested members of the bar and the public to better follow the work of the Court.”

The court has been livestreaming its arguments since the beginning of the pandemic—a first in the institution’s history. The justices announced Monday that they will continue to do so during the January and February sittings.

VIDEO: Bloomberg Law examines what the Framers envisioned for the Supreme Court and the long history of presidents and Congress attempting to shape it to fit their political needs.

Progressive Calls

Biden established the commission in April 2021 following calls from progressives to “reform” the court after bruising confirmation battles that resulted in a 6-3 conservative majority. The newly constituted court has come under the spotlight as it considers rolling back abortion rights and, possibly, affirmative action.

Progressive groups wasted little time in dismissing the commission’s report as little more than an academic exercise.

“Despite the obviousness of both the problem and the solution, the Presidential Commission on the Supreme Court has refused to make a formal recommendation on court expansion or any other reform,” said Meagan Hatcher-Mays, director of democracy policy for progressive advocacy group Indivisible. “The American people deserve better than this long-awaited yet deeply unhelpful pros and cons list.”

Daniel Goldberg, legal director of the Alliance for Justice, which supports adding seats to the Supreme Court and other major changes, said creating a code of ethics for the justices would be a “minimum” step.

Legal scholars and other experts never expected sweeping conclusions from the commission due partly to its bipartisan composition. And White House Press Secretary Jen Psaki emphasized that the commission was never intended to issue recommendations.

Biden “asked this diverse group of experts from a range—from across the political spectrum, from across the viewpoint spectrum—to look at and assess a range of issues that have long been discussed and debated by Court experts,” Psaki said earlier on Monday.

(Adds reaction from progressives, other details of report. )

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com; 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