Biden’s Supreme Court Commission Approves Final Report with ‘No Position’ on Court-Packing

Policy

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

A commission formed by President Biden to study potential reforms to the U.S. Supreme Court voted unanimously on Tuesday to approve a final report that takes “no position” on Court-packing.

The panel, which Biden formed in April to study Court expansion and reform, will send a nearly 300-page report to the president that offers arguments for and against Court-packing, judicial term limits and other matters related to the high Court, but does not provide any recommendations. 

“Given the size and nature of the Commission and the complexity of the issues addressed, individual members of the Commission would have written the Report with different emphases and approaches,” the report’s summary said. “But the Commission submits this Report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”

The report notes that “no serious person, in either major political party, suggests court packing as a means of overturning disliked Supreme Court decisions, whether the decision in question is Roe v. Wade or Citizens United.”

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“Scholars could say, until very recently, that even as compared to other court reform efforts, ‘court-packing’ is especially out of bounds,” it reads. “This is part of the convention of judicial independence.”

However, it adds that the commission “takes no position on the validity or strength of these claims.”

“Mirroring the broader public debate, there is profound disagreement among commissioners on these issues,” the report says. “We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate.”

The final report follows the release of draft materials detailing the panel’s discussions in October in which the commission warned that expanding the number of justices on the Court would be seen as a “partisan maneuver.”

The panel also weighed term limits for justices, who currently have life tenure. The average term for a Supreme Court justice today is about 26 years, according to the Washington PostThe commission discussed a proposal to stagger 18-year terms to ensure that all presidents have the opportunity to nominate two justices in each term they serve.

While it takes no position on the proposal, the report notes that a group of Supreme Court practitioners concluded that an 18-year nonrenewable term “warrants serious consideration.”

White House press secretary Jen Psaki said earlier this week that Biden will review the commission’s findings but did not say how or when the president might act upon any of the information included in the report.

“It’s not recommendations that he either accepts or denies,” Psaki said. “He’ll have to review it first and I don’t think we’re going to set a timeline for what that looks like and what it will mean after that.”

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