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Commission punts to Biden on Supreme Court reform plans
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Commission punts to Biden on Supreme Court reform plans

  • Mitch McConnell infamously blocked former President Barack Obama from naming a successor to Justice Antonin Scalia after the conservative stalwart died nine months before the 2016 election. Four years later, upon the death of the liberal icon Justice Ruth Bader Ginsburg just over a month out from the 2020 election, McConnell sped through the confirmation of Barrett.
    Architect of the CapitolMitch McConnell infamously blocked former President Barack Obama from naming a successor to Justice Antonin Scalia after the conservative stalwart died nine months before the 2016 election. Four years later, upon the death of the liberal icon Justice Ruth Bader Ginsburg just over a month out from the 2020 election, McConnell sped through the confirmation of Barrett.

A commission set up by President Joe Biden to study how the U.S. Supreme Court can be improved voted unanimously Tuesday to submit the extensive research it has conducted, but the few recommendations contained in the report leave little indication on next steps. 

At nearly 300 pages, the report reads like a research paper, detailing proposals on each side of controversial issues like court-packing and term limits without taking a formal stance on what actions should be taken. The commission does suggest that the court adopt a code of ethics to promote institutional values and continue the pandemic-era tradition of livestreaming audio of oral arguments to allow for greater transparency. 

Biden created the commission via executive order in April to write a report detailing the role and operations of the Supreme Court with arguments for and against possible reforms. The action came on the heels of contested nominations to the court resulting in the appointment of three justices by former President Donald Trump. The supermajority conservative court is set to hear a historic docket this term with key decisions on abortion, voting and gun rights. 

Following arguments last week on Mississippi's abortion ban — a case in which the conservative justices appeared primed to overturn the court’s 50-year precedent of Roe v. Wade — Democrats have recently renewed calls to reform the court.

The questions of legitimacy are ones that the justices have even begun to tackle. Justice Sonia Sotomayor recently asked if the court will survive “the stench” that would be created if the court were perceived as merely another political body. On the other side of the aisle, Justice Amy Coney Barrett insisted that members of the court are not a "bunch of partisan hacks," remarks that drove groans as they occurred at the University of Louisville's McConnell Center — a building named for the Republican Senate majority leader largely responsible for paving Barrett's path to the bench.

McConnell infamously blocked former President Barack Obama from naming a successor to Justice Antonin Scalia after the conservative stalwart died nine months before the 2016 election. Four years later, upon the death of the liberal icon Justice Ruth Bader Ginsburg just over a month out from the 2020 election, McConnell sped through the confirmation of Barrett.

Democrats have pushed for adding justices to the court to compensate for seats they feel were stolen from them and better balance the ideological membership of the court. Tuesday's report says Congress is within its discretion to do this and cites specific examples of when it has occurred in the past. While some say this move should not be done to advance a political agenda, the report acknowledges that every change to the court at least in part serves the interests of one political party. 

The commissioners offer arguments for and against adding justices to the court but offer no conclusion if Biden should pursue the reform citing disagreement between commissioners.

“Mirroring the broader public debate, there is profound disagreement among Commissioners on this issue,” the report states. 

The report was more open to the idea of swapping justices' lifetime appointments for term limits, saying the matter “warrants serious consideration” but stopping short of making an actual recommendation. The proposed limits included 12- or 18-year terms that would allow for each president to appoint two or three justices to the court. 

“One major justification for a staggered, term-limited system of appointment is that such a system would bring about less randomness and greater equality across presidential terms in the number of Justices a President would have the opportunity to appoint,” the report states. “That aim would be drastically undermined, however, were Congress free to vary the size of the Court.” 

To those pushing for reforms, the report may be a disappointment but the commission says it did exactly as Biden charged. 

“Some will be disappointed that there are no recommendations to this report, that there is not a consensus document, but that was not our charge,” Nancy Gertner, a retired federal judge and senior lecturer at Harvard, said during the commission’s meeting. “Our charge was to outline the arguments, to talk about the pros and cons, and the the the report ably does that.”  

In contrasted to the tempered language of the report, some members of the commission did not hide their disdain for the direction in which the court is headed when laying out their findings Tuesday.

"The anti-democratic, antiegalitarian direction of this court's decisions about matters like voting rights, gerrymandering, and the corrupting effects of dark money, those decisions are not just wrong but they put the court — and more importantly our entire system of government — a way of life on a one way trip from a defective but still hopeful democracy to a system in which the few corruptly govern the many,” said Laurence Tribe, the Carl M. Loeb University professor and professor of constitutional law emeritus at Harvard University. “Something between an autocracy and an oligarchy. And instead of serving as a guard rail against going over that cliff, our Supreme Court — I say sadly — has become its all too willing handmaiden.” 

Many of the commissioners expressed that they did not agree with every aspect of the report, but most of those who spoke conveyed an appreciation for the exchange of ideas and at least satisfaction with the final product. 

There is no timeline for actions Biden could take after receiving the report. 

“The President will then get the report and will have time to review the report, but I don’t have a timeline for how long it will take him to review the report,” Press Secretary Jen Psaki said while briefing reporters.

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