President Joe Biden’s Presidential Commission on the Supreme Court held its second meeting Wednesday, with some scholars pushing for term limits for justices, limiting the high court’s power, or adding more seats to the court.
The whole day meeting was held online, with experts divided into four panels to discuss a broad range of reform proposals.
“I strongly urge this commission to consider a reform proposal that many of us have discussed and written about, which are term limits for the Supreme Court Justices,” said Maya Sen, a public policy professor at Harvard University’s John F. Kennedy School of Government.
Sen pointed out that the court is fundamentally a political institution, and the appointments process is increasingly being exploited for partisan gain.
Sen argued that term limits could eliminate many political incentives and address the “fundamentally undemocratic nature of lifetime tenure.”
Ilan Wurman, an associate professor at Arizona State University, said, “the proposal for eighteen-year, staggered term limits, fixing the Court at nine Justices, strikes me as the most plausible of all available reforms” even he thinks term limits are unnecessary.
Staggered term limits with nine Justices mean there will be a vacancy every two years. So each President will get two appointees per term.
The experts spent limited time on the idea of increasing Justices to the high court, known as “court-packing,” but debated over ideas for limiting the court’s power of judicial review—such as stripping its jurisdiction to strike down particular laws.
Nikolas Bowie, an assistant professor of law at Harvard Law School, claimed in the meeting that the Supreme Court is an “anti-democratic institution.”
“The main problem is ‘judicial review’ or the power of the court to decline to enforce a federal law, when a majority of the justices disagree with a majority of Congress about the law’s constitutionality,” Bowie said, citing the court’s invalidation of the Voting Rights Act of 1965 in a 5–4 decision in 2013.
“Democratizing the Supreme Court will be hard, but we must do it,” Bowie concluded.
But some experts disagree. Noah Feldman, a Professor of Law at Harvard Law School, said substantial reforms could be “disastrous.”
“The question is whether under our current circumstances, weakening the court through substantial reform—and I have in mind ‘court-packing,’ and most forms of jurisdiction stripping—would enhance or undermine the institutional legitimacy of the court, which legitimacy enables it to fulfill these functions,” Feldman said. “In my view, those sorts of firms would be disastrous for the capacity of the Supreme Court to engage in these roles that it currently engages in.”
Biden created the presidential commission through an executive order in April, materializing his proposal floated last October in response to some Democratic lawmakers’ request to expand the court. Republicans criticized his move as “an assault on our nation’s independent judiciary.”
Twenty Republican governors on Tuesday sent a letter to Biden, urging him to oppose any expansion of the court.
Sen. Ted Cruz (R-Texas) and Rep. Dusty Johnson (R-S.D.) sent a letter to the commission in May, reminding them that according to the Constitution, “Congress retains exclusive authority to amend or preserve the Supreme Court.”
In the letter, they also pointed out that their resolution—S.J. Res. 9 and H.J.Rs. 11—which proposed an amendment to the Constitution to require the high court be composed of nine justices, had gained growing support in the Congress, with 18 Senators and 173 Representatives signed on as cosponsors.