• Wed. Jan 26th, 2022

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Biden’s Supreme Court Commission Prepares to Vote on Final Report

WASHINGTON — A bipartisan commission of legal experts appointed by President Biden to study potential changes to the structure of the Supreme Court will meet on Tuesday to vote on a final report that flags deep disputes over expanding the number of justices while also exploring how phasing in term limits might work.

The commission released a draft version of its final report on Monday evening and is set to meet on Tuesday to discuss and vote on whether to approve sending it to Mr. Biden. That meeting is expected to be streamed live on the White House website.

It remains to be seen whether the commission, which is ideologically diverse, will unanimously embrace the report. But rather than making specific policy recommendations, the report seeks to promote a debate over possible changes to the court, including by describing in detail arguments for and against various ideas.

While the draft report covers many topics, the one that has received the most attention is expanding — or “packing” — the Supreme Court by adding justices to it. The commission’s existence dates back to demands by some liberals last year that Democrats embrace that idea to ideologically rebalance the court after Justice Ruth Bader Ginsburg, a key member of its liberal wing, died in September 2020. Republicans rushed to confirm a conservative replacement, Justice Amy Coney Barrett, before the presidential election several weeks later.

Rather than take a position on court expansion, Mr. Biden said in October 2020 that he would create a commission to study the issue after the election. He later gave it a mandate to study many other proposals for overhauling the Supreme Court as well.

The commission has conducted much of its business in public. Its draft final report, released on Monday evening, hews closely to the broad takeaways of previous working group materials it had developed. Since its last meeting in November, the commission has revised those materials and converted them into chapters of a unified document.

As in earlier draft versions, the chapter on court expansion describes arguments for and against it, while emphasizing that its own members had sharply diverging views on the idea.

“The commission takes no position on the validity or strength of these claims,” the report’s executive summary said. “Mirroring the broader public debate, there is profound disagreement among commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate.”

A chapter on term limits — an idea that has received somewhat greater bipartisan support — also described arguments for and against such proposals. But the report also went into more detail on various ways that such a change could be achieved, including how to transition from the current system of life tenure and various challenges for such a change.

“Opponents of term limits cite what they believe to be the intractability of these implementation questions as reason not to pursue term limits,” the draft final report’s executive summary said. “Proponents emphasize that the benefits of term limits warrant grappling with what they believe are difficult but soluble design questions.”

The draft final report also contained chapters recounting the history of proposals to alter the Supreme Court, ideas for reducing the power of the court and issues surrounding its growing use of its so-called shadow docket, by which it deals with emergency cases that may have major consequences, but without full briefings and arguments.