It didn’t receive much notice, but the commission President Joe Biden established to study possible Supreme Court reforms completed its work on Tuesday. Unanimously, its 34 members of legal scholars approved an extensive report to fulfill its charge to study the current process for appointing Supreme Court justices and to analyze the pros and cons of various proposals for reforming the process. To progressives eager to undo the current court’s composition, however, the report achieves nothing and the commission’s work was a waste of time. They, and all interested in preserving the independence of the country’s highest court while assuring it is responsive to our representative democracy, should instead thank the commission for laying bare the challenges and opportunities of proposals for structural change in the appointment, number and tenure of the justices.
The backdrop for the report is outrage from Democrats that Republicans, most prominently led by their wily Senate leader, Mitch McConnell, have abused the current Supreme Court nomination process, by first refusing to consider a President Obama nominee because of the approaching 2016 presidential election and then pushing through three President Trump nominees, including one in the closing weeks of the 2020 election. With the Supreme Court seemingly poised to issue sweeping decisions on abortion, guns and religion, it will soon be clear just how much the court has been transformed from a conservative-leaning but more centrist institution, to one willing to abandon its historically more incremental approach for rapid, even radical, transformation.
For progressives and many Democrats the response is simple — pack the court by expanding its size to dilute the current conservative majority. This became possible with Biden’s election and the flip — barely — of Senate control to the Democrats. Biden, who during last year’s campaign said he was “not a fan” of such an approach, instead formed the commission to study that idea and also other proposals to address serious concerns that the court is no longer independent of the partisan fray.
The commission made no recommendations — nor was it asked to — but its comprehensive 288-page report highlights the challenges of implementing reform without damaging the court’s independence. In particular, its discussion of issues surrounding the court-packing idea make clear how ill-advised that approach would be. For progressives and other advocates, it’s a relatively low-hanging fruit because Congress is able to increase the number of justices, as it has in the past. But if the Democrats were to use their razor-thin Senate control to dilute the court’s current conservative majority, a dangerously partisan pendulum could be set in motion that would lead to court-packing swings each time Senate and White House control changes, a result that would seriously undermine the Supreme Court’s credibility and independence.
Another proposal, which the commission found has attracted “considerable, bipartisan support,” is establishing term limits for the justices. The report notes that every other major constitutional democracy and all states but one impose a tenure limitation on its highest court justices. Further, it cited data that the average years of service on the Supreme Court was around 15 throughout the country’s history before 1970 but has since ballooned to roughly 26. This has been fed by a tendency of administrations to nominate much younger justices whose lifetime terms will increasingly outlast generations and leave the court less responsive to changes in the nation’s will.
One specific proposal we continue to find promising — articulated in the past by the conservative National Review magazine and others — would establish staggered 18-year terms for each of the nine justices, eventually allowing every president two picks per term. The commission’s report noted many strong arguments by term-limits advocates that the individual justices would remain independent, but the court’s overall composition would be more gradually responsive to the country’s evolving will as expressed through presidential and Senate elections over time. The report also noted objections raised to term limits, but in the main those seem more tail-wagging-the-dog concerns and boil down to asserting lifetime tenure — which has existed since the nation’s founding — isn’t broken, so don’t fix it.
As was evident in the bitterly partisan and demeaning nomination fights in recent years, that’s clearly not the case. The Supreme Court commission’s report may not placate those eager for President Bident to dilute the current court by expanding it, but it has served a valuable purpose in pointing out the strengths and weaknesses of various proposals being advanced for Supreme Court reform. And we hope its analysis of term-limits proposals will point the way to a measured and balanced approach to strengthening the court’s credibility and independence.