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Commission on Supreme Court reform struggles to find common ground

Members of the presidential commission on the Supreme Court can agree on one thing: they don’t agree on much.

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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The partisan context in which much of the draft materials were framed drew criticism from members claiming it damages the legitimacy of the court. Others also claimed that the framing of the report in a partisan manner feeds into the view that justices are partisan actors. 

“This is a ploy that can only serve to undermine confidence in the court in a dangerous moment in the republic's history,” said Thomas Griffith, a senior adviser to the National Institute for Civil Discourse and lecturer on law at Harvard Law School.

Much of Friday's discussion related to the partisan perceptions of the court drew on the confirmation process — an area the commission’s draft materials indicated it would not touch. However, some members said this was simply unavoidable. 

“​If the Senate simply refuses to act, or if it simply refuses to appoint new justices, almost all of these proposed reforms can be undermined in one way or another,” said Jack Balkin, a Knight Professor of Constitutional Law and the First Amendment at Yale Law School.  

Balkin said the current state of the Senate and its relationship to the court must be considered within these reforms. 

“In today's America, the most powerful counter-majoritarian institution is not the Supreme Court, it is the United States Senate,” Balkin said. “The Senate no longer functions according to the famous metaphor, as the saucer that cools the passions of the public. Today, it functions more like a black hole. It is where the democratic will of the American public goes to die.” 

The draft materials laid out proposals for limits on justices’ tenure on the court, aiming to limit terms to 18 years and allowing each president to nominate two justices during a four-year term. Again, the commission members were divided on this issue. Some endorsed the idea of term limits, citing the idea that people who stay in the same job for too long “stop thinking.” However, others found issues with tying term limits to presidential nominations, claiming it enforced partisan perceptions.  

The last chapter of the report considers solutions to make the court more transparent, with a particular focus on emergency orders. Sometimes referred to as the shadow docket, emergency orders have been a lightning rod for contentious commentary from justices and critics alike. Some members of the commission questioned the need for addressing such topics given the scope of their charge, while others questioned why the justices themselves wouldn’t be included in this discussion. 

“We were commissioned by the president to provide advice to the president and the public about sort of reform possibilities, most of what we're talking about here is not addressed to the president really or for the public so much as the justices,” said William Baude, a professor of law and faculty director of the Constitutional Law Institute at the University of Chicago Law School. “And I worry that's made worse by the fact that we haven't really heard in any formal capacity from the justices and haven't had them participate in this process.” 

Underscoring the high-stakes moment in the court’s history, one member used an analogy to 9/11 to describe calls for reforms. 

“I understand that there are those who think we face Flight 93 choices and dramatic actions will be needed to avert disaster,” said Keith Whittington, the William Nelson Cromwell professor of politics at Princeton University and chair of Academic Freedom Alliance. “In such circumstances it is hard to find common ground.” 

The commission’s materials — which have not yet had input from President Biden — contained testimony from 44 witnesses, 23 written statements, and over 6,500 public submissions. A final draft of the report will be released in November. 

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