Biden Commission Takes No Position on Packing Supreme Court

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President Joe Biden’s commission to examine potential changes to the Supreme Court on Tuesday said they would not endorse adding seats to the nation’s top court.

The 34-member commission said in a draft final report (pdf) that it “takes no position on the validity or strength” of arguments by opponents and supporters of proposals to expand the court, adding that “there is profound disagreement among commissioners on these issues.”

Neutral stances were also taken on other controversial proposals, like one to impose term limits on justices, who at present are appointed for life terms.

On the other hand, the commission did express a view on several aspects of the court.

For instance, commissioners suggested the benefits would outweigh the risks if live audio recordings of Supreme Court hearings were continued to be allowed.

The commission was established by Biden in April. He said at the time he wanted the panel to offer a history of the role of the Supreme Court, including an account of “contemporary commentary and debate” about that role, and an analysis of the leading arguments for and against adding seats.

Commissioners were scheduled to meet on Tuesday to approve the report and formulate a letter to Biden about their findings.

The White House did not immediately return a request for comment.

Some Democrats have pushed in recent years to expand the size of the court, angered by a series of Republican nominations.

Former President Donald Trump was able to nominate three justices alone, including filling a vacancy that former President Barack Obama tried to fill. Obama was blocked by the Republican-controlled Senate, which decided to let the seat be filled by whoever won the 2016 election.

Republicans are virtually unanimous in opposing expansion of the court.

The number of seats has been set at nine since 1837. Attempts by Democrats to expand it in the 1900s failed, as did an effort to fix the court at nine seats through a Constitutional amendment.

Modern-day proponents for expanding the court feel “norms” were violated by the Senate’s refusal to consider Obama’s nominee, despite then-Sen. Joe Biden’s call to do the same if a vacancy arose during an election year, commissioners said in their report.

“Other proponents of expansion regard it as critical to prevent the continued undermining of our democratic system of government, which they regard as exacerbated by the court’s jurisprudence,” they wrote.

Adding seats could also boost the court’s efficiency, since it is called upon to decide matters of great importance, commissioners said.

Opponents of court packing say the series of recent nominations reflect electoral outcomes and note Republicans violated no rules in their refusal to consider Merrick Garland.

“Critics of court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add justices to bring the court more into line with their ideological stances or partisan political aims,” they added.

A key matter is preserving public respect of the court. Even some opponents of the court agree it’s better to avoid court packing to try to maintain the court’s “long-term legitimacy and independence,” commissioners said.

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