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Commission sends Biden report on Supreme Court overhauls

Report includes no recommendation on proposals to expand number of justices

The U.S. Supreme Court building is seen at sunset in Washington on Thursday.
The U.S. Supreme Court building is seen at sunset in Washington on Thursday. ((Photo by Bill Clark/CQ Roll Call))

The White House commission on the Supreme Court unanimously voted Tuesday to send its report to President Joe Biden, but as expected it makes no recommendation on contentious overhaul proposals such as term limits for justices or expanding the number of justices.

The completion of that commission’s work moves the focus back to Biden and Democrats in Congress, with pressure from liberal groups to respond to a Supreme Court that has a 6-3 conservative majority and is considering cases that could reshape abortion and gun rights.

That energy focuses now on legislation that would expand the number of justices from nine to 13, which was introduced in April by Democratic Sen. Edward J. Markey of Massachusetts and House Judiciary Chairman Jerrold Nadler and Rep. Mondaire Jones, both of New York, and Georgia Rep. Hank Johnson.

At the time it was introduced, Speaker Nancy Pelosi and Senate Judiciary Chairman Richard J. Durbin of Illinois cast serious doubts on the chances of the bill getting action in either chamber and pointed instead to the work of the commission.

The House version now has 43 co-sponsors and support from Minnesota Democratic Sen. Tina Smith, according to Demand Justice, a liberal nonprofit group pushing for changes at the Supreme Court.

The commission’s report aimed to take no position on the validity or strength of the arguments for and against adding judges, or creating term limits for the justices instead of life tenure. Parts of the report describe possible steps Congress could take regarding the confirmation process for justices. Biden had requested a review of proposals, but not recommendations.

“The American people deserve better than this long-awaited yet deeply unhelpful pros and cons list,” Meagan-Hatcher Mays, Indivisible’s director of democracy policy, said in a press release. “We need Congress to pass the Judiciary Act, and add four seats to the Supreme Court.”

The commission’s approval of the 294-page report by all 34 members from varying ideological backgrounds doesn’t mean those legal experts agreed on those issues, even among the former federal judges on the commission.

“After hearing public testimony, reading the comments, hearing from fellow commissioners, watching and listening this Supreme Court over the past several years, I am more convinced than ever that change is necessary, and soon,” Nancy Gertner, a former federal district judge, said before the vote.

“This is a uniquely perilous moment that requires a unique response,” Gertner said. “One party seeks to constrict the vote, deny fair access to the ballot to people of color, [and] the Supreme Court is enabling those efforts.”

Thomas Griffith, a former federal appeals judge, said that the proposed changes would undermine the Supreme Court’s role in preserving the rule of law and turn it “just another partisan battlefield.”

“We must not lose sight of the fact that the justices have played well, though not always perfectly, their part under the Constitution as impartial adjudicators,” Griffith said before the vote. “We must not sacrifice the federal judiciary to partisan impulses.”

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