Supreme Court reform panel notes 'considerable' risks to court expansion

A bipartisan commission on Thursday said there are “considerable” risks to expanding the number of justices on the Supreme Court, including the potential to undermine the high court’s legitimacy. 

President Biden had ordered the panel to study potential reforms to the high court and it released preliminary findings Thursday.

Although the commission did not take positions on the proposals featured in Thursday’s materials, opting instead to highlight potential drawbacks and advantages, the group’s cautionary note about adding justices to the bench stood out. 

“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. Recent polls suggest that a majority of the public does not support Court expansion,” a draft document released by the White House on Thursday states. “And as even some supporters of Court expansion acknowledged during the Commission’s public hearings, 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.” 

The debate over reform comes amid a recent dropoff in the 6-3 conservative majority court’s approval rating and at the start of a blockbuster term in which the justices will hear a direct challenge to the landmark 1973 decision ruling in Roe v. Wade and a gun rights case that could result in the expansion of the Second Amendment.  

The court was already under heightened scrutiny for several controversial rulings made recently under its emergency, or so-called shadow docket, posture, and an explosive term with the potential to drastically alter American life could fuel calls for the High Court’s overhaul.

The lengthy “discussion materials,” which are broken up into five sections, explore the arguments for and against adding justices to the high court, as well as other potential reforms.  

Members of the commission are set to discuss the draft materials during a meeting on Friday. White House press secretary Jen Psaki told reporters earlier this week that the final report would be submitted to Biden in mid-November. The final report is not expected to contain recommendations for specific reform measures.

The document notes that expanding the court, a policy known as "court packing," could benefit the court’s public reputation by allowing a president to “select individuals who reflect the rich diversity of the nation” or allow the court to take on more cases.  

“Decisions by a more diverse judiciary might be more informed,” the document states. “More generally, a Court that was drawn from a broader cross-section of society might be viewed as more acceptable to the public.” 

However, the commission also says expanding the court “could lead to a continuous cycle of future expansions.” 

“We have not sought to determine whether any particular perspective on the confirmation process or on the Court’s composition today is ‘correct,’” the document states. “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.” 

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.”

Debate over the future of the Supreme Court raged in the waning days of the 2020 presidential election as Senate Republicans rushed to confirm then-President Trump’s third court nominee, Amy Coney Barrett, ahead of the November vote.

The move was seen by Democrats and much of the electorate as a blatantly hypocritical form of constitutional hardball after Senate Republicans refused to grant even a hearing to nominee Merrick Garland, former President Obama’s pick to replace the late Justice Antonin Scalia, on the claim that election-year confirmations should be avoided.

Then-candidate Biden largely deflected the issue but pledged on the campaign trail to establish a commission to study various reform proposals, including adding seats to the bench as well as other measures that were considered less extreme, a vow which he delivered on in April.

The commission, chaired by former White House counsel Bob Bauer and former senior Justice Department official and Yale law school professor Cristina Rodríguez, is composed of 36 members, including constitutional scholars and academics like Harvard law professor Laurence Tribe and New York University professor Richard Pildes.

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