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Supreme Court Panel Divided on Expansion Approves Report

Dec. 7, 2021, 9:33 PM

A White House Commission studying changes to the U.S. Supreme Court voted unanimously to send its report to President Joe Biden after sidestepping the most controversial proposals to expand the court’s membership or limit the justices’ terms.

Members, who voted 34-0 Tuesday, emphasized that their approval of the final report doesn’t signal support for all the proposals examined by the panel.

“I am opposed to expanding the size of the court, limiting the term of the justices,” or stripping the court of the authority to hear certain cases, said former D.C. Circuit Judge Thomas B. Griffith.

Nevertheless, he said he’d vote to approve the report because the process took account of all views, including those of conservatives, who formed a minority on the commission.

Biden created the commission in April 2021 in the face of pressure from progressives urging action to counter the 6-3 conservative majority that resulted after President Donald Trump’s three nominees to the high court.

Some may be disappointed that the report doesn’t make specific recommendations, said former U.S. District Court Judge Nancy Gertner, who said she supports changes to the court. “But that was not our charge,” Gertner said.

Instead, “the tasks set before us was to capture that deep, live, and consequential debate, fully and fairly, without short changing either side,” said Harvard Law School Professor Andrew Manuel Crespo.

It is intended to “be a resource for people interested in the Supreme Court and its role” in our Democracy, said co-chair Cristina M. Rodríguez, of Yale Law School.

The report doesn’t take positions on expanding the number of justices or imposing term limits. Instead, it provides an overview of the proposed change, pro and cons, and any obstacles to adopting those measures.

The commission concluded that the least controversial changes, like term limits, were the hardest to enact, said Harvard Law School Professor Larry Tribe. And the most controversial—expanding the number of justices—the easiest to do, he added.

The report does, however, speak favorably of more limited changes, such as continued livestreaming of oral arguments and the adoption of an advisory ethics code.

It isn’t clear what the president will do with the report, now that it is complete. “I don’t think we’re going to set a timeline for what that looks like and what it will mean after that,” White House Jen Psaki said Monday.

Pressure from progressive to make some of the changes outlined in the report is likely to increase as the Supreme Court considers cases that are likely to roll back abortion rights and expand gun rights.

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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