Skip to comments.NO SCOTUS PACKING! Biden Presidential Commission Splashes Cold Water on Supreme Court Expansion and Flirts with Idea of Term Limits
Posted on 10/15/2021 9:07:46 PM PDT by SeekAndFind
On the eve of a public hearing, President Joe Biden’s commission released a series of reports on various proposals to reform the Supreme Court. The report appeared to reject the idea of expanding the court, receptive to term limits for justices, and proposed confronting the so-called “shadow docket” with increased transparency.
Setting out explicitly to avoid “partisan conflict” and “polarization,” the commission disappointed many on the Democratic Party’s left flank by criticizing the idea of adding justices to the Supreme Court — a theory described as “expansion” by its supporters and “court packing” by its critics. Former President Franklin Delano Roosevelt proposed the idea nearly a century ago to keep the court from shooting down the most ambitious aspects of his New Deal agenda, but Congress never enacted it, and Associate Justice Owen Roberts famously shifted his jurisprudential views regarding the constitutionality of the administrative state to more closely align with those of the FDR administration.
In five sets of reports — stylized as “Discussion Materials” — the commission lays out the history of the debate before chiming in on various proposals.
“Reinforce the Notion That Justices Are Partisan Actors”
From its 46-page treatise “Membership and Size of the Court,” the commission was no more bullish on the idea, questioning the benefit leveling out the partisan affiliations of the justices.
It is “far from clear that ideological balance is in and of itself a desirable goal,” they wrote.
“If there is no such balance in the political branches, requiring such balance on the Court could make it insufficiently responsive to electoral outcomes,” the materials state. “In other words, if the goal were to ensure that the Court roughly reflects the public will and exhibits a degree of responsiveness to the political composition of the people at a given time, artificial balance between the two political parties would not achieve that objective. A balanced bench could be preferable to the status quo for those observers of the Court who perceive a significant mismatch between its composition today and the body politics. [sic] But institutionalizing such a requirement could block or would not be preferable to farther reaching change.”
Justices appointed by both parties—including Stephen Breyer, Amy Coney Barrett, and Samuel Alito—have lashed out at public commentators depicting them as political actors, even when indignantly declaring their neutrality in explicitly partisan settings.
“My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” Barrett said in September, after being introduced by the Senate’s top Republican Mitch McConnell (R-Ky.). Breyer, one of the liberal justices, appeared on Fox News to echo similar sentiments, and Alito criticized a piece written by The Atlantic’s Adam Serwer, who in turn slammed the justice’s “delusions of impartiality.”
Biden’s Commission appeared to tilt toward the justices’ points of view.
“What is more, an explicit requirement that Justices be affiliated with particular parties would constrain the pool of potential nominees and reinforce the notion that Justices are partisan actors,” they wrote.
“Only Major Constitutional Democracy” without Term Limits
On the other hand, Biden’s Commission—like Justice Breyer—appeared to be receptive to the idea of term limits, even though the Constitution does not dictate the court’s size but does specify lifetime appointments.
“The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court Justices,” the report on term limits states. “Most democracies like ours have term limits for their constitutional courts, and the small number of countries that have ‘life tenure’ provisions for their apex court actually impose age limits.”
The commission noted that the Constitution’s call for lifetime appointments springs from the desire for judicial independence.
“The constitutional principle of judicial independence requires that judges not face any consequences, positive or negative, for how they decide cases,” the report states. “But our system of checks and balances also requires that the elected branches be able to affect the composition of the judiciary through successive appointments.”
Such a proposal would require an amendment to the Constitution, which the commission envisions could contain an 18-year term.
Another section of the report on “Case Selection and Review” speaks extensively about the so-called shadow docket.
“The term ‘shadow docket’ was coined six years ago to describe the Court’s ‘orders and summary decisions that defy its normal procedural regularity,'” the report describes — noting this often occurs via emergency orders.
One idea for reform, the panel notes, calls for greater transparency over important decisions such as over Texas’s anti-abortion law S.B. 8, which was held up by critics as a prime example of a decision decided along partisan lines with little explanation.
The commission noted that confronting the issue, however, could prove tricky.
“To be sure, the category of ‘important’ cases in which explanation may be most valuable is hardly self-defining; reasonable minds will differ over the details,” the report states.
This is a developing story.
Dickinson Debevoise, poster boy for term or age limits for Article III federal judges.
Come next November he will be faced with a hostile House and Senate as well as the Court. Let’s go Brandon!
The SCOTUS was set up to have a thoughtful judgement on tough cases. The left has for decades used the judiciary to implement laws against Constitutional Rights and the will of the people.
Term limits for House and Senate Now!!!
Every suggestion/recommendation...circles back around to adding/changing of the Constitution, which at this point...is physically impossible to accomplish.
If Joe wanted to open up the court (pack it), and he just start nominating people....the Senate would go into a six-month long ‘battle’ and nothing would be accomplished in the end. You’d just bring us all closer to civil conflict.
The sad thing here is that the discussion ought to center on term limits (for House, Senate, Supreme Court). I think a majority of Americans would come to agree to some wording on this.
Grandfather the current occupants. Set a 20 year term with the possibility of renomination for ten years. The lower court judges are seriously drunk on their power. Set a ten year term, possibility of a second term. Or just give them a retention vote every ten years
And limit all Presidents to a single term.
One and done.
Term limits the SCOTUS after term limiting CONgress.
I am all for an age limit. Its ridiculous to have another RGB remain on the bench when she could not even stay awake in public. She was almost as bad as Joe Biden for her last few years.
It would take a constitutional amendment. Fat chance.
As soon as it went to a “committee” to be “studied” you new it was a dead idea.
I think a constitutional amendment with term limits for all elected offices and the Supreme Court would have a great deal of support from both left and right.
Many liberals are sick of career politicians like Schumer, McConnell, etc.
they’ll just rid one of the conservative judges the same way they off’d Scalia.
a much easier way than changing the constitution would simple be to impeach them after a set period of time or a certain age. The congress already has the right to impeach them for any reason.
Term limits for House and Senate Now!!!
There are pros and cons to everything. Step back and think about it before thinking a “magic bullet” will solve it.
Good luck getting a Constitutional Amendment to change this passed
Congress is never going to term limit itself. It loves term limits for everyone else, it is never going to vote itself out of office.
You are correct. Chiefs of staff would just run in place of the term-limited candidate....or the spouse, child, etc.
Voters have shown that they are fine with monarchies.
The best would be to term limit any job in government....local, state and federal to 12 years. After that you can no longer work in any role for government.
That is not perfect, but would cleanse the bureaucracy as well
The constitution does not say that scotus justices have life tenure
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