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Biden’s Supreme Court commission signals opposition to adding justices

WASHINGTON (CN) — In new material released today, President Joe Biden’s commission on the Supreme Court finds that striking an ideological balance on the court isn’t practical and the high-stakes bitter partisan battle playing out on the high court should be a surprise to no one. 

The preliminary draft materials — which have not been yet reviewed by President Biden — provide an analysis to be used in the commission’s final report that is set to release in November. 

Biden signed an executive order in April 2021 establishing the commission with the goal of gathering contemporary evidence concerning the role and operations of the Supreme Court. The commission will also provide historical context and arguments for and against reforms for the high court.

The commission was established as the conservatives on the court now have a 6-3 majority following the passing of Bill Clinton nominee Ruth Bader Ginsburg. The court has also complied a monumental docket this term set to decide key partisan issues like abortion and Second Amendment rights. 

The big takeaway from this report will be the proposed reforms. The commission looked at four main categories of reform: size and composition of the court, justices’ tenure, the court’s power and role in the constitutional system, and the transparency of the court’s internal processes.

On the issue that has arguably had the most calls from Democrats in relation to reforms, adding justices, the commission says an ideological balance might not be a “desirable goal.” The analysis bases this claim on the fact that other political branches are not balanced and that requiring that level of responsiveness would not necessarily help the court better reflect the body politic. 

“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,” the materials read. “But institutionalizing such a requirement could block or would not be preferable to father reaching change.” 

The court’s emergency docket, sometimes coined shadow docket, has been another contentious issue with multiple justices speaking out publicly against criticism suggesting the court overuses this power that provides far less transparency than normal cases. 

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“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Justice Samuel Alito said during a speech at the University of Notre Dame. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

However, his own colleagues have expressed concerns about the court’s overuse of the docket. Justice Elena Kagan chastised the court’s use of the docket in a Texas abortion case which effectively ended the practice in the state. 

“The majority’s decision is emblematic of too much of this Court’s shadow docket decisionmaking—which every day becomes more un-reasoned, inconsistent, and impossible to defend,” Kagan wrote in her dissent.

The commission opined on solutions to create more transparency in this process but ultimately noted that in reality, “emergency orders are, and will remain, a necessary component of the court’s work.” 

The draft materials are quick to acknowledge the circumstances under which the commission was created, remarking that its own creation “underscore[s] that the nation has been engaged for some time in an intense and ongoing debate about the court’s composition, the direction of its jurisprudence, and whether one political party of the other has breached norms that guide the process of confirming new justices.” 

While acknowledging there is no one consensus to blame for the current state of the court, the commission agrees polarization will continue to have an effect. 

“Any account of the origins of the present debate about the role and operations of the court, therefore, would be incomplete without taking note of how our deeply divided polity affects debates over the court.” 

Taking care to not take sides on the partisan debate on how the court arrived at this moment, the commission traces the history of partisan battles over appointments back to Woodrow Wilson nominee Louis Brandeis. The materials note divides over nominees from both sides of the political divide including Lyndon Johnson nominee Thurgood Marshall and Ronald Reagan nominee Robert Bork. Bork’s nomination hearings were so bitter they resulted in a term to refer to a nominee that was subject to unfair treatment, borked. 

While acknowledging that the confirmation process for Supreme Court nominees has become especially partisan and bitter, the commission said it will not offer any reforms for the process. 

“The commission’s charge was to address proposals for reforming the court itself, not for reforming the confirmation process,” the materials state.

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The draft materials released by the 36 member commission comprised oral testimony from 44 witnesses, written statements from 23 experts and organizations, and more than 6,500 public submissions. The commission will hold its first public meeting tomorrow.

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Vandana Ravikumar/Cronkite News

The court’s emergency docket, sometimes coined shadow docket, has been another contentious issue with multiple justices speaking out publicly against criticism suggesting the court overuses this power that provides far less transparency than normal cases.