WASHINGTON (CN) — In their first full public meeting on Friday, members of President Joe Biden’s Supreme Court commission expressed strong opposition to the panel's own draft materials released less than 24 hours earlier suggesting resistance to court expansion.
The commission — created by Biden via executive order in April — is charged with creating a report detailing the role and operations of the high court, and perhaps most importantly it will provide arguments for and against possible reforms.
The Supreme Court is facing legitimacy questions and critiques of its justices serving as partisan actors set to carry out the agenda of their nominator instead of members of an impartial judicial body. Following the appointment of three justices by former President Donald Trump, the court now has a 6-3 conservative majority and is set to hear a historic docket this term, with key decisions coming on abortion, voting and gun rights.
On Thursday night, the commission released draft materials prepared by working groups within the commission that signaled opposition to expanding the court — a reform strongly supported by some advocates on the left. During Friday’s discussion, some members said the chapter on court expansion did not provide a balanced view from the commission.
“Chapter two's rejection of court expansion thus shapes, and in my view distorts, not just the chapter but the entire report,” said Andrew Manuel Crespo, a professor of law at Harvard University. “The overarching message sent to those who see problems with the current court and with how its most recent seats have been filled seems to be, don't do the one thing you can do to address the problem, court expansion, consider trying some things that probably won't work.”
Crespo also took issue with the arguments against court expansion, particularly the premise that this reform would break a decades-old norm. He argued that this norm was already broken when the Senate refused to consider Merrick Garland as a replacement for the late Justice Antonin Scalia.
“The norm has been broken, recently, if one defines court-packing as Congress using its legislative power to change the size of the Supreme Court for political or partisan reasons,” Crespo said. “There is a fair argument that the Senate violated that norm when it shrunk the size of the Supreme Court to eight seats for the last year of President Obama's term; when it threatened to keep it at eight seats if Hillary Clinton were elected president in 2016; when it returned the court to nine seats when President Trump was elected; and when it then violated its own newly crafted precedent against election year confirmations by confirming Justice Barrett just weeks before the 2020 election.”
Multiple members of the commission stressed the need for a restructuring of the report, with some going so far as suggesting they would not sign onto the final report without changes.
“I think a report that pours cold water on the one clearly legitimate exercise of congressional power to respond to a dangerous jurisprudential trend, a report that poured cold water on that, would be a report that I would have trouble signing,” said Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University.
One point of contention from these members was the way the arguments for and against court expansion were written within the report. Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense & Educational Fund, Inc., said the way the report is structured favors arguments against expansion.
“All of the arguments in favor of court expansion are first presented in a paragraph and then each paragraph ends with, but here are all the reasons why that might be problematic, difficult, unwise,” Ifill said. “The result is that the last word is always to that position.”
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