On Thursday night, President Joe Biden's commission designed to study court packing and other so-called reforms released materials of their draft report.
The commission discussed a variety of topics, including "Setting the Stage: The Genesis of the Reform Debate and the Commission’s Mission;" "Membership and Size of the Court;" "Term Limits;" "The Court’s Role in the Constitutional System;" and "Case Selection and Review: Docket, Rules, and Practices."
Each section makes it clear that "[t]he inclusion of particular arguments in these draft materials does not constitute a Commission endorsement or rejection of any of them, and specific points of analysis or particular perspectives appearing in the drafts should not be understood to reflect the Commission's views or those of any particular Commissioner."
Particular interest lies in what the commission had to say about "Membership and Size of the Court." Those looking for any definitive answers will be disappointed, though. As is acknowledged early on:
Whether expansion of the Supreme Court ought to be pursued as a prudential matter presents a more difficult question. We focus our consideration on the most common proposal made today: the immediate expansion of the Court by two or more members. Some lawmakers recently have proposed increasing the Court's size from nine to thirteen members, for example. But we note as well that the (temporary) expansion of the Court might also be necessary to effectuate other reforms, such as the implementation of term limits for the Justices...
The report does discuss the merits of court packing, such as how some Democrats think it needs to be done so that it "could help restore balance to--and, thus, the legitimacy of--the Court."
Another justification is that a "larger Supreme Court might also be able to decide more cases and to spend more time on emergency petitions."
A particularly woke suggestion is summed up by how "a Court that was drawn from a broader cross-section of society might be viewed as more acceptable to the public."
This reasoning might be particularly compelling to Biden, as he has committed to appointing Black judges and justices. The following is part of Biden's campaign website to do with "Biden's Plan for Black America," with original emphasis:
Appoint U.S. Supreme Court justices and federal judges who look like America, are committed to the rule of law, understand the importance of individual civil rights and civil liberties in a democratic society, and respect foundational precedents like Brown vs. Board of Education and Roe v. Wade. Biden has also pledged to appoint the first African American woman to the U.S. Supreme Court, a move which is long overdue. We can’t have four more years of Trump appointees filling lifetime judiciary seats...
The report goes on to acknowledge that "the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court's legitimacy... the reform--at least if it were done in the near term and all at once--would be perceived by many as a partisan maneuver."
It's soon after mentioned that, according to one view, "Court expansion would be a dangerous power grab by one political party--one that would render the decisions of the resulting (larger) Supreme Court of questionable legitimacy to at least some members of the public."
There's then a rebuttal of the merits mentioned above. One particularly foreboding point the report makes is that "Court expansion today could lead to a continuous cycle of future expansions."
Here's perhaps the biggest takeaway from this section:
We have not sought to determine whether any particular perspective on the confirmation process or on the Court’s composition today is "correct." But the more important point is that different segments of the public and the legal and academic communities understand the determinants and likely consequences of the Court’s current composition differently, and any lawmaker contemplating Supreme Court reform should be aware that the pursuit of immediate Court expansion would involve taking a position in a partisan contest in which opinion is deeply divided.
Within this draft, a whole host of other proposals are suggested, including rotating justices and panel systems.
Another hot topic is addressed in "Term Limits."
The commission seems more open to term limits. Many reasons are given in favor of them, but no specific ones are given for opposing them, other than a mention that these objections will be addressed later.
The introduction begins by noting that "[a]mong the proposals for reforming the Supreme Court, term limits for Supreme Court Justices appear to enjoy the most widespread and bipartisan support," is how the introduction begins.
"The discussion underscores that there are principled reasons favoring term limits for Supreme Court Justices, as they simultaneously would preserve the value of judicial independence and ensure that the Court's membership is broadly responsive to the outcome of democratic elections over time," is how the introduction reads towards the end, suggesting perhaps a sort of remedy.
The commission will meet again on Friday to further discuss the draft materials. Recommendations will come in November.
As a candidate, nominee, president-elect, and now even president, Joe Biden has failed to provide the American people with a view that is acceptably clear of how he currently feels about court packing, which will surely affect a major branch of government. As a senator in 1983, however, he called it a "bonehead idea."
Last October, then Democratic nominee Biden said he would let the American people know his position after he got elected. He had also said that same month that he was "not a fan of it," but then admonished reporters for asking about it, saying "I don't want to get off on that whole issue" and that "I want to keep focused."
Democrats in April introduced legislation in the House and the Senate to pack the court, known as the Judiciary Act, which will expand the Supreme Court to thirteen seats.
The fact that these are only drafted materials for recommendations that are not to come until next month, seem to be lost on a far-left group that has relentlessly pushed for court packing as well as for Justice Stephen Breyer to retire.
John Kruzel and Morgan Chalafant included in their reporting for The Hill the following statement:
Demand Justice, a progressive group that has advocated for reforms such as expanding the court and creating term limits, issued a statement criticizing the draft materials as a waste of time and urging Congress to move forward with reforms.
“The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several diehard conservatives who are fully content with the status quo,” Brian Fallon, the group’s executive director, said.
“From the beginning, the purpose of this Commission was not to meaningfully confront the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it fights other legislative battles.”
Demand Justice has also been a major proponent of the Judiciary Act.