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Supreme Court Report Downplaying Expansion Dismays Panelists (1)

Oct. 15, 2021, 5:15 PMUpdated: Oct. 15, 2021, 5:47 PM

Several members of President Biden’s commission examining changes to Supreme Court criticized its initial documents for coming down against expanding the size of the nation’s highest court.

The report on this point “tilts rather dramatically in one direction,” said former federal district court Judge Nancy Gertner.

The commission released its “discussion materials” in advance of its public hearing Friday, which Gertner explained was “the first chance that we all have had to actually deliberate face to face” the contents of the commission’s report.

The commission, which is composed largely of law professors and former federal judges, is considering a wide range of changes to the Supreme Court, including term limits and limiting the kinds of cases that the justices can consider. On those other sections, the report is pretty balanced, said Harvard Law professor Andrew Manuel Crespo.

But with respect to court packing, which is the proposal that has garnered the most attention, Guy-Uriel E. Charles of Harvard Law School said the current draft “shades very much against court expansion without sufficient basis for doing so.”

The arguments in support of adding seats are “teed up to be knocked down” in the report, Crespo said.

The 36-member commission lost one member following the departure of Caleb Nelson, a University of Virginia law professor.

“I have resigned from the Commission,” Nelson said in an emailed statement. “I was honored to be part of it, but I don’t have further comment.”

‘Court Packing’

President Biden had first proposed a commission to study the Supreme Court during the 2020 presidential campaign as he faced pressure from progressives to endorse the idea of adding new justices as counter-balance to the 6-3 conservative majority.

Then-candidate Biden suggested that he didn’t think reforms like “court packing” were wise and could undermine the legitimacy of the court as an apolitical institution.

That point of view comes across in the current draft, Crespo said, adding that there needs to be more evenhanded when dealing with the two sides.

At the same time, the draft’s framing of the issue as a zero sum game for Democrats and Republicans fails to grapple with nonpolitical reasons for expanding the court, said NAACP Legal Defense and Educational Fund’s Sherrilyn Ifill.

There’s little consideration of how lifetime tenure means the justices are often out of step with the general population and leads to a lack of diversity among the justices, Ifill said.

Despite that there are many reasons to expand court apart from politics, this report “frames the entire discussion this way,” Ifill said.

Gertner emphasized that the purpose of the commission is to encourage debate on this issue, not stop it.

Too Much Oxygen

Not everyone agreed, however.

University of Chicago law professor William Baude said he thought the report didn’t go far enough in discouraging adding seats to the high court.

“I do really worry that giving as much oxygen as we do” to the issue is “dangerous and wrong,” Baude said. He added that the draft doesn’t do enough to emphasize the norms that would be broken by allowing Congress to intervene with the Supreme Court because of political considerations.

The current draft of the report “would itself contribute to destroying a norm” of the court as above politics, Baude said.

“There a lot of work to be done on this chapter,” said University of Alabama law professor Tara Leigh Grove.

-With assistance from Madison Alder

(Updates with Nelson resignation in seventh paragraph.)

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

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

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