The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, President Biden's Commission on the Supreme Court voted to approve its final report. Like the preliminary "discussion materials" issued in September (which I wrote about here), the Report does not endorse either court-packing or term limits for Supreme Court justices, but is generally more favorable to the latter than the former. Indeed, the Commission stops short of actually endorsing any reform proposals at all, with the possible exception of continuing the pandemic-era practice of providing public access to live audio of Supreme Court oral arguments.
Relative to the discussion materials, the final Report is somewhat less negative about court-packing. Chapter 2 provides a detailed overview of the arguments for and against "court expansion" (including a few that advocate increasing the size of the Court for reasons other than changing its ideological composition) and notes that "there is profound disagreement among Commissioners on these issues."
I think the Commission's summary of the case against court-packing (pp. 79-84) includes much stronger arguments than its overview of the case for it (pp. 74-79). But then again, I myself am a longtime opponent of the idea. Readers can judge the arguments in the report for themselves.
The report does reject arguments that court-packing is unconstitutional, such as that advanced in co-blogger Randy Barnett's testimony before the Commission (see also Joshua Braver's response to Randy here). The Commission's conclusion on this point reflects the dominant view among legal scholars, though Randy and Michael Rappaport have offered serious arguments on the other side. I wish they were right, but so far remain unpersuaded.
On term limits, the Report also provides a balanced overview of the case for and against. But like the preliminary discussion materials, it emphasizes the widespread support for this idea, contrasting it with the highly divisive nature of court-packing:
Among the proposals for reforming the Supreme Court, non-renewable limited terms—or "term limits"—for Supreme Court Justices have enjoyed considerable, bipartisan support. Advocacy groups, nonprofits, and membership organizations have expressed their support for term limits. In testimony before the Commission, a bipartisan group of experienced Supreme Court practitioners concluded that an eighteen-year non-renewable term "warrants serious consideration." Major think tanks and their leaders have also endorsed the concept, as have both liberal and conservative constitutional scholars. When the National Constitution Center organized separate groups of "conservative" scholars and "progressive" scholars to draft their own proposals for improving the Constitution, both groups concluded that Supreme Court Justices should be limited to eighteen-year terms. Yet other scholars and commentators have questioned the idea of altering the system of life tenure, which has been in place since the Constitution established the Supreme Court and the judicial power. [notes omitted].
The Report goes over a wide range of practical difficulties involved in designing a system of term limits, particularly the problem of how to transition from the status quo to the new system. Although I support term limits, I agree these are issues proponents have to deal with. The Report also points out that members of the Commission are divided over the issue of whether term limits require a constitutional amendment, or can be enacted by statute alone. In my view, a constitutional amendment is indeed necessary, and ending life tenure by statute would set a very dangerous precedent.
The Report goes over a wide range of other possible reforms to the Supreme Court, including jurisdiction-stripping, reforms to the "shadow docket," the possibility of creating a code of ethics for the Court, and much else. On all the issues it covers, the Report offers a helpful and detailed overview of a variety of reform proposals, and critiques thereof. It will be a great resource for scholars, legal commentators, and others interested in these issues!
What the Report will not do is generate any significant political momentum for major reform. Most obviously, the Commission's unwillingness to endorse court-packing puts paid to the idea that it was ever going to provide a boost to such plans. That's exactly what I and others predicted based on the Commission's composition (which included many court-packing skeptics).
I had hoped the Commission might instead provide a boost for term limits. But that, too, seems unlikely to happen. Although the Report is relatively favorable to the idea, it doesn't seem to have much momentum right now. Most notably, President Biden recently reiterated his opposition to the proposal.
I think both term limits and court-packing will remain a part of mainstream political debate for some time to come. But neither looks likely to get far in the near future.
Even if the Commission Report has little political impact, it's possible that the Supreme Court's declining popularity will give a boost to court-packing or other reforms. I assessed that possibility in October, and tentatively concluded it was unlikely to lead to court-packing anytime soon. I think the points I made remain valid, particularly 1) Biden and congressional Democrats clearly have other fish they prefer to fry instead, 2) there is no pro-packing majority in the current Congress, 3) the Court's unpopularity is at least partly offset by Biden's own, and 4) the Court's public standing might well bounce back, as has happened several times before in the last two decades.
Will things change if the Court overrules Roe v. Wade next year (as could well happen)? That's a topic I hope to take up in another post, when time permits. For now, I will conclude by emphasizing that Biden's Commission has produced a Report that is a valuable resource—but not one likely to galvanize action.
That outcome might even be what Biden had in mind all along. As I noted when Biden first broached the idea of a Supreme Court commission in October 2020, "[e]stablishing a commission is the kind of thing presidents tend to do when they do not want to prioritize a given issue." So far at least, Supreme Court reform has been noticeable by its absence from the President's list of priorities.