Biden Judicial Commission Rejects Court Packing, Term Limits

Progressives claim reforms are needed to reverse Court’s rightward tilt

Kevin Daley • December 7, 2021 10:02 am

President Joe Biden’s Supreme Court commission dashed progressive hopes Monday when it refused to endorse court packing or term limits for justices.

The commission’s final report acknowledges “profound” disagreements over what direction the Court should take in the future but makes no specific recommendations. The commission will vote to adopt the report and send it to Biden during its last scheduled meeting on Tuesday.

The fissure of the court packing push could be especially bitter for the far left given the content of the Court’s docket this term. The justices signaled last week that they may overturn Roe v. Wade this summer. And gun-rights advocates are hopeful that the Court will expand concealed carry rights in a Second Amendment case it heard in November.

The commission’s report states flatly that it takes no position on Court expansion. The report acknowledges Congress could tinker with the Court’s size at any time. But it notes the most forceful arguments for expanding the Court, such as maintaining public confidence in the institution, can also be used in support of the status quo.

The report is lukewarm on the subject of term limits. The commission did not throw its weight behind the idea, but its report discusses ideas for phasing in a term limit system.

One practical obstacle to term limits is transitioning the Court’s current members into retirement. The report suggested addressing the problem by constitutional amendment. The amendment would set a limit on tenure and require the justices to retire in order of seniority—defined by years of service—in three-year intervals. Justice Clarence Thomas would be the first to leave under that model.

The report added that any attempt to set term limits should permanently fix the number of justices.

“One major justification for a staggered, term-limited system of appointment is that such a system would bring about less randomness and greater equality across presidential terms in the number of justices a president would have the opportunity to appoint,” the report reads. “That aim would be drastically undermined, however, were Congress free to vary the size of the Court.”

The report adds that term limits offer “uncertain practical benefits.” Critics have expressed concern that term-limited justices might consider post-judicial employment options in their deliberations. They also say shortened terms of service reduce incentives to cooperate, especially later in a justice’s tenure.

One of the few measures the panel rejected outright was a proposal Transportation Secretary Pete Buttigieg championed as a presidential candidate. The Buttigieg proposal meant to dilute ideological advantage by expanding the Supreme Court to 15 seats. Each party would select five members, and those 10 would choose the remaining five.

“Article II does not permit ‘judges of the Supreme Court’ to be selected by other members of that Court,” the report reads.

The commission’s design reflects the president’s ambivalence about reforming the Supreme Court. Biden mustered the panel under heavy pressure from progressives to address the Court’s rightward tilt. But he gave the panel a vague directive, asking only for appraisals of court reform arguments rather than policy proposals. And he staffed the commission with status-quo-minded figures like academics, establishment lawyers, and a handful of conservatives who were unlikely to endorse sweeping change.