Three Takeaways from the Supreme Court Commission’s Preliminary Report
Making good on a campaign pledge, President Joe Biden recently created a bipartisan commission to study and draft a report concerning potential reforms to the U.S. Supreme Court. Now, after summer meetings, a few dozen witnesses and thousands of public comments, the commission has released a preliminary draft of its report, with a final report expected to arrive in mid-November.
Below are some immediate reactions to the preliminary report, with a more substantive analysis to come following the submission of the commission’s final report next month. In summary, the Commission did not tell court watchers much they did not already know; endorsed potential solutions that could make the Court appear even more political; and limited their work only to the Supreme Court, rather than addressing the larger systemic flaws in the judicial system itself.
1. Court packing is not happening anytime soon.
A proposal to expand the number of seats to the Supreme Court—a measure endorsed by a number of progressive groups and some members of Congress—has seemingly mixed support among the 36 commissioners. The preliminary report correctly observes that “Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of justices,” but warns that court packing’s risks “are considerable” and “could undermine the very goal of some of its proponents of restoring the Court’s legitimacy.”
The Commission’s view seems to mirror President Biden’s, who both as a senator and candidate was critical of the reform. Most notably, during the 2019 Democratic primary, President Biden noted that the inevitable political escalation of adding seats to the Supreme Court would lead the Court to “lose any credibility the Court has at all.”
In short, the report states that the “Commissioners are divided on whether Court expansion would be wise.” This lukewarm reception will surely not be enough to convince either the public, which has been consistently not supportive, or a divided Congress.
2. The Commission is—mistakenly—open to term limits.
One reform endorsed by at least most of the Commissioners is term limits for Supreme Court justices. “While there are many reasons to support term limits,” the report states, “their core purpose is to regularize the appointments process, making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of democratic elections over time.”
But as I’ve argued before, “term limits will not achieve the goals its proponents intend.” Further, the only way to implement term limits is through a long-term political effort and a plan that most likely begins once the current justices on the Court leave the bench. Yet if the concern is with the current view or actions of the Court, it makes little sense to focus on a plan that will take decades at best to see through.
To begin, even with term limits—whether 12, 18, or more years—“justices will not always complete their set terms and … term limits do nothing to prevent Senate machinations, such as purposefully delaying a confirmation vote.” The report concedes that “term limits cannot succeed without a change in the confirmation process . . . .” Again, reforming both the Supreme Court and the Senate confirmation process is a long-term task that fails to assuage today’s worries about the Court and could inject more politics into the debate over the judicial system—which runs contrary to the goal of turning the political temperature down.
The report also claims that nominations “more rationally related to the outcome of democratic elections” would be a positive. But there are two sides to every coin. The direct tie between election results and Supreme Court seats also allows candidates to make the Court a permanent part of their platform and a sticking point in every election, which seemingly does little to persuade the public that the justices are not directly entangled in politics.
Lastly, term limits also offer more turnover on the Court. Such turnover could be refreshing, but it also can provide plenty of abrupt ideological shifts. After all, “if two presidents of the same party served three or four consecutive terms, an overwhelming majority of the court would quickly be ideologically one-sided.” This foreseeable, and dramatic, shift on the Court would “only put a greater spotlight on it during presidential elections and judicial confirmations.”
3. The Supreme Court gets the attention while the lower federal courts struggle.
Any drastic reform to the Supreme Court will take time and substantial political buy-in, neither of which Congress enjoys.
One of the Commission’s flaws was that it was limited to considering only potential issues and reforms to the Supreme Court. This prevented the Commission from considering the lower federal courts, where reform could be far more immediate and impactful.
For example, most people interact with the federal judiciary only at the lower federal courts. Few cases make it to the Supreme Court. Last year, over 500,000 cases were filed in federal district court while the Supreme Court only heard 73 argued cases last term. The sheer volume of these cases means lower federal courts face a daily capacity crisis. For years, the Judicial Conference—the nonpartisan policy-making body for the federal courts—has requested that Congress pass a new judgeship bill. But for nearly 30 years, despite some bipartisan efforts, Congress has failed to deliver.
The White House’s choice to limit the Commission’s discussion only to Supreme Court reforms was a missed opportunity that could have brought significant momentum to more practical and bipartisan efforts.
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