Two conservatives on the bipartisan Presidential Commission on the Supreme Court have resigned as the panel released its first report containing reform recommendations earlier this week.
Meanwhile, other legal experts involved with the commission have said the members’ recommendations were biased against so-called ‘court-packing,’ or expanding the number of justices from its current nine.
The White House released the first draft of materials under discussion on Thursday evening in advance of deliberations by the full panel during a Friday virtual hearing. But White House officials noted that conservatives Caleb Nelson, a law professor at the University of Virginia, and Jack Goldsmith, a law professor at Harvard University, stepped down from the panel ahead of the hearing, the Washington Examiner reported.
“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates said in a statement emailed to Bloomberg. “We respect their decision and very much appreciate the significant contributions that they made during the last 5 months in terms of preparing for these deliberations.”
Nelson also emailed a statement to Bloomberg confirming that he has “resigned from the Commission” but “was honored to be part of it.” He did not elaborate on his reasons for stepping away.
The Washington Examiner reached out to both men, but neither responded to a request for comment, the outlet reported.
Originally comprised of 36 people when it was formed in April, some members have criticized how discussion materials were framed while suggesting there was a lack of focus on institutional confidence and instead tended to cater to partisan viewpoints. Others complained that the materials were inherently “biased” against court-packing.
To that point, the commissioners wrote there are “reasons to doubt” that expanding the court “would produce benefits in terms of diversity of efficiency.” They added: “There is no guarantee that a larger Court would be drawn from a more diverse group of individuals.”
Indeed, the report said that “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 progressive Democrats called for expanding the high court, after former President Donald Trump managed to appoint three constitutionalist justices to the bench, in an effort to see more left-leaning justices join the court or even come to dominate it. As a U.S. senator for decades, Biden never supported court-packing schemes, but he refused to say whether he continued to oppose it during his 2020 campaign, even saying at one point that Americans did not “deserve to know” his position on the issue.
But his Supreme Court panel was clear that should not be an option and that the court should remain at its current nine justices. Commissioners cited recent polling on the issue showing the American people don’t support it as well as the pitfall 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 report noted.
That said, the panel suggested that a rotational system might be a better alternative, whereby judges would rotate judicial service between lower federal courts and the Supreme Court.
But those recommendations were not universally accepted.
“This entire discussion is framed in the context of partisan politics. And I actually think that is a disservice to the exploration of this issue,” NAACP Legal Defense Fund President Sherrilyn Ifill said in regards to court-packing.
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