Biden Supreme Court commission offers recommendations about adding justices, other changes

A presidential commission that was established earlier this year to study making changes to the makeup of the U.S. Supreme Court has determined that adding justices is not in the country’s best interests, but members nevertheless made recommendations that included rotating justices.

In its first report, the Presidential Commission on the Supreme Court wrote there are “reasons to doubt” that expanding the court “would produce benefits in terms of diversity of efficiency,” while adding: “There is no guarantee that a larger Court would be drawn from a more diverse group of individuals.”

In fact, the panel wrote, “a larger court may be less efficient than the current complement of justices.”

The commission was formed by President Biden earlier this year after several congressional Democrats called for expanding the high court after claiming Republicans unfairly managed to secure a right-leaning majority when former President Donald Trump managed to fill three vacancies on the nine-member court in a single four-year term. Though Biden, in the past, had expressed opposition to the notion of expanding the Supreme Court, he began the process of forming a panel to study that very issue, among others, anyway just days after he was inaugurated in January.

As a presidential candidate, Biden and his surrogates repeatedly dodged the question of whether he would attempt to “pack” the court — that is, add several new left-leaning justices in order to counter the court’s conservative faction or to dominate the court altogether. At one point, Biden even said that Americans did not “deserve to know” his position on the issue.

But the presidential commission noted there were additional risks to expanding the high court which includes recent polling on the issue showing the American people don’t favor it, and the danger that expanding the court will likely lead to a “continuous cycle of future expansions.”

“To be sure, any Supreme Court Reform would likely require unified government,” the report stated. “Nevertheless, we believe it is important to recognize the risk.

“According to one [purportedly modest] estimate of the consequences of expansion as parties gain Senate majorities and add Justices, the Supreme Court could expand to twenty-three or twenty-nine Justices in the next fifty years, and thirty-nine or possibly sixty-three Justices over the next century,” the panel’s report noted.

Instead, the committee suggested that a rotational system might be a better alternative, whereby judges would rotate judicial service between lower federal courts and the Supreme Court, which would be similar to how the secretive Foreign Intelligence Surveillance Court works, where 11 federal district court judges, all chosen by the Chief Justice, serve a single seven-year term.

However, the panel noted that reform may face a “constitutional obstacle,” citing Article III, Section 1, of the Constitution, which says that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

The commission also said that potential problems with a rotation system, if one was determined to pass constitutional muster, would include creating a system that may “introduce inefficiencies into the court’s work.”

During his term, Trump nominated and the Senate confirmed three justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

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Jon Dougherty

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