On Tuesday, Joe Biden’s Commission on the Supreme Court voted to approve its final report for delivery to the president. The commission ultimately refused to endorse a court-packing scheme or term limits for justices formally.
With the docket of cases pending before the Court this term, radical progressives are likely to be incredibly disappointed in the failure of the commission to recommend bold changes to the structure of the Court. The current case includes the case argued last week that seeks to overturn Roe v. Wade and a major gun rights case from New York looking for broadened concealed carry rights according to the Second Amendment.
The report acknowledges that Congress has the constitutional power to expand the size of the Court at any time through ordinary legislation. As a matter of politics and public policy, the commission pointed out that arguing expanding the Court might support public confidence in the legal system could also be forcefully used to preserve its current size.
The report does not endorse the proposal but discusses ways the concept could be phased into effect about term limits. Imposing term limits for federal judges would require an amendment to the Constitution and present some practical issues regarding the retirement of judges already serving.
The commission suggested that sitting judges could be compelled to retire based on seniority in three-year intervals to start a term limit system. It was also strongly suggested that a term limits amendment set a permanent number of justices on the Court.
The report says that a “staggered, term-limited system of appointment” would bring about greater equality from one presidential term to the next regarding the number of justices each president might appoint. If Congress could expand or shrink the size of the Court under such a system, it would undermine the purpose of term limits.
The commission warned of some practical problems with term limits. Justices might be seen as compromised in cases because of employment prospects after their term expires. Judges might also be less likely to compromise near the end of their times.
Biden called for the commission’s creation after the court-packing issue was highly publicized during last year’s presidential election. Progressives became motivated to change the fundamental structure of the Court after President Donald Trump appointed three Justices in his first term.