Justices would be added to the nine-member Supreme Court under a major proposal released Thursday as part of a draft from a commission appointed by President Biden, though the panel warned an expansion could lead to “partisan conflict.”
The Commission on the Supreme Court, created in April through executive order, is expected to release its final report next month.
But on Thursday, the commission’s members noted their “prominent proposal would increase the number of justices who sit on the court.”
Although the panel cautioned there is “no legal obstacle” to expanding the Supreme Court, it cautioned that it could lead to more chaotic and partisan confirmation hearings that could trickle down to the lower courts.
“Other proposals suggest reorganizing the membership of the court,” read the discussion materials released Thursday evening.
Another would set term limits for the justices, who currently are appointed for life under the Constitution, and would “define the intervals” for appointments to the high court, the commission’s document says.
The last president to try to add justices to the high court was Franklin D. Roosevelt in 1937, but even the overwhelmingly Democratic Congress opposed the move.
The high court has had nine justices since 1869. Before that, it fluctuated from five to 10 justices.
The Constitution does not set a number of justices, but any expansion would have to go through Congress.
Given the 50-50 party-line split in the Senate and a 60-vote threshold to pass most legislation, it’s unlikely any bill to add justices would pass.
The commission was bullish on term limits for the justices, saying that idea would enjoy more bipartisan support in Congress. However, Congress is divided on whether term limits would be constitutional.
That has created concern among panel members, according to the report. Those who oppose term limits worry that the justices themselves would need to decide if such a proposal is constitutional, leading to concerns that any decision could undermine the court’s legitimacy.
But panel members who endorsed the idea dismissed such worries as “overblown,” saying it doesn’t pose a threat to the court’s legitimacy compared to other issues it has faced over the years.
“Some commissioners believe that term limits represent an appropriately calibrated solution to that problem and will help the court defend our democracy against actual or potential regress,” the panel said.
The commission is composed of liberal and centrist members who are expected to issue a final report Nov. 14 recommending changes to the high court.
White House press secretary Jen Psaki said Wednesday that Mr. Biden wouldn’t be commenting on the report until the final draft is submitted to him in November and he’s had a chance to review it.
On Thursday, Ms. Psaki downplayed the preliminary draft’s significance, calling it “an assessment, not a recommendation.”
Carrie Severino, chief counsel of the conservative Judicial Crisis Network, said the commission so far has thrown “cold water” on the idea of court packing.
“The left-wing dark money groups who helped elect Joe Biden driving this court-packing effort will not stop because of what any commission says,” she said. “Rather, they will continue in earnest their take-no-prisoners campaign to intimidate the court until it delivers the liberal policy preferences they demand.”
Alliance for Justice, a liberal advocacy group, called the report “an important step towards achieving the reforms we so desperately need.”
“From greenlighting Texas’s abortion ban to gutting the Voting Rights Act and blocking the eviction moratorium as COVID surged, it’s clear that this court is advancing a dangerous agenda. Only democracy can save this court, and the commission’s report will help raise awareness that reform is not only possible, but necessary,” said Rakim Brooks, Alliance for Justice president.
Mr. Biden’s commission was created amid recent calls from liberals to pack the Supreme Court, stemming from anger that conservatives hold a 6-3 majority on the bench after liberal Justice Ruth Bader Ginsburg’s death last year.
Progressives grew increasingly angry about the Supreme Court during former President Trump’s four years in office, during which he made three appointments — Justices Neil Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
The proposed changes come as the Supreme Court recently hit its lowest approval rating among registered voters in a Quinnipiac University poll published last month.
Fifty percent of registered voters gave the high court a negative approval rating, while 37% approved of the job the justices are doing. Thirteen percent did not offer an opinion.
It’s the lowest job approval the high court has received since Quinnipiac University began questioning people about the Supreme Court’s job in 2004.
The high court is also set to hear several politically charged issues this term, weighing the future of abortion rights under Roe v. Wade and the limits a state can place on the right to carry a firearm outside the home.
The president’s commission has held three public meetings since its creation, hearing from a number of legal scholars about the impact of adding justices to the Supreme Court or limiting the number of years a justice may serve.
The panel has another meeting scheduled for Friday, which is expected to last roughly seven hours.
During their lengthy meetings, the legal experts from both sides of the aisle have testified about various changes to the high court and whether alterations would make the court appear more or less political.
Justice Stephen Breyer, the most senior justice of the liberal wing, in an August interview pushed back against the proposal to expand the court, suggesting that move could lead to the next Republican president doing the same.
“Think twice, at least,” he said. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”