While some commissioners agree, at least in part, with critics who want the court expanded, others conclude that “Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values,” the commission said.
Some Democrats have pushed to add seats to the nine-judge court, infuriated by Senate Republicans refusing to hold a vote in 2016 on then-President Barack Obama’s nominee Merrick Garland. They’ve also accused the court, which currently has six justices appointed by Republicans, of ruling incorrectly on a number of matters.
The calls have “been fueled by Democrats’ concerns that an increasingly conservative court presents a threat to the progressive conception of the Constitution across a range of issues, including firearms, reproductive rights, LGBTQ rights, voting rights, health care, climate change, and affirmative action,” the commissioners said.
The arguments have received pushback. Supporters of the court’s current size note then-Sen. Biden said in 1992 that the president at the time, President George H.W. Bush, should not name a nominee if a seat became vacant because it was an election year. He also said the Senate should not hold a vote if Bush did nominate a justice.
Additionally, they say, the court’s composition is a result of Republican presidents and senators winning elections—and the timing of vacancies—and the rulings reflect the conservative judges’ leaning toward trying to interpret the Constitution as it was fixed at the time of its inception, versus some judges’ tendency toward a “living interpretation.”
Republicans’ choice not to take up Garland’s nomination—and to take up then-President Donald Trump’s nomination of Justice Amy Coney Barrett in 2020, another election year—was within congressional rules, the commission acknowledged.
Congress does legally have the power to expand or contract justices, both sides agree. But there’s widespread disagreement on expanding the court, as the commission detailed.
“The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy. Recent polls suggest that a majority of the public does not support court expansion. And as even some supporters of Court expansion acknowledged during the commission’s public hearings, the reform—at least if it were done in the near term and all at once—would be perceived by many as a partisan maneuver,” commissioners said.
On the other hand, expansion might “benefit the Supreme Court’s public reputation” in part because it would let a president “select individuals who reflect the rich diversity of the nation, that is, the wide range of characteristics and backgrounds that can enrich discussion and decision making—gender, race, ethnicity, religion, sexual orientation, gender identity, educational and professional background, and geographic origin,” they said.
“Decisions by a more diverse judiciary might be more informed; for example, the Court’s deliberations in criminal cases could be enhanced by the perspective of a Justice with a background in criminal defense,” they wrote.
While an unspecified number of commissioners oppose expanding the court, an unspecified number “believe that the nation has reached (or is on the verge of)” the end of American democracy, they added later.
Commissioners appeared more favorable to arguments for setting term limits for justices or rotating judges between the Supreme Court and lower courts.
A number of scholars have endorsed tenure limits and a look at published works on the subject “discovered few works arguing against term limits,” the commission said, adding that 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 commission is set to issue a final report on Friday.
Biden established the panel in April. His executive order says it was meant to put forth a history of the role of the Supreme Court, including an account of “contemporary commentary and debate” about that role, and an analysis of the leading arguments for and against adding seats.
Commissioners include Michelle Adams, a law professor at the Benjamin N. Cardozo School of Law; Bob Bauer, a professor at the New York University School of Law; Andrew Manuel Crespo, a law professor at Harvard University; and Caroline Fredrickson, a senior fellow at the Brennan Center for Justice.