Biden Supreme Court commission shows interest in term limits


WASHINGTON – The most comprehensive review to date of the ongoing work of President Biden’s Supreme Court commission has shown its continued interest in imposing term limits on judges, while also noting “a deep disagreement among commissioners On whether expanding the court would make sense.

Ahead of a public meeting on Friday, the bipartisan panel of legal experts on Thursday released a set of “discussion papers” that constitute draft chapters for its final report to Mr Biden next month.

Their publication is the latest development in the complex and politically sensitive debate over whether to seek fundamental changes from the Supreme Court. This debate has intensified since Republicans blocked President Barack Obama’s candidate for court in 2016 and has erupted even more after President Donald J. Trump succeeded in placing three judges on the court, registering a conservative majority. from six to three even though Republicans have lost the popular vote in seven of the last eight presidential elections.

Against this backdrop, some liberals began to push Democrats to support Congress by increasing the number of judges on the ground so that a Democratic president could make a flurry of nominations to rebalance him ideologically. In October 2020, during the final weeks of the presidential campaign, Mr Biden avoided taking a clear stance by saying he would set up a panel to study questions of judicial reform.

Mr Biden’s charge to the panel was to offer analysis but not recommendations, and the group takes no position on the various ideas it analyzes.

Instead, the draft documents present options with the aim of promoting constructive national debate, while acknowledging significant disagreements.

It is unclear what action, if any, Mr Biden could take once he receives the commission’s final report next month, even as the court examines successful cases that have many progressives on edge. including a challenge to the constitutional right to abortion established in 1973 by Roe v. Wade. Any substantial change in court would require an act of Congress or a constitutional amendment.

The documents released Thursday reflected contributions from a meeting last month, which was the first time the majority of Commissioners had seen earlier versions produced by smaller groups. Some of the changes were intended to further explain the arguments for and against expanding – or consolidating – the court and imposing term limits on Supreme Court seats.

The documents, however, suggest that while both ideas have their supporters and detractors, the tribunal’s enlargement is the more controversial of the two.

For example, some liberals oppose the violation of the court size change standard that developed after President Franklin D. Roosevelt’s “court packaging” proposal failed, in part because that a conservative Senate and president could also choose to recline the tribunal by expanding this.

“This uncertainty leads even some who fundamentally disagree with certain aspects of the current Supreme Court case law to believe that it is better to preserve the long-term legitimacy and independence of the Court than to open the Court to potentially dangerous and even authoritarian political movements moving forward, ”the commission documents said.

In contrast, while the revisions flesh out a section explaining arguments against imposing term limits on the Supreme Court, the discussion papers also point out that the idea of ​​staggered terms of 18 years – with an open seat every two years – enjoyed the support of both liberal and conservative scholars.

Evidence gathered by the commission, including comparing how states and other countries run their justice systems, showed that the U.S. system in which Federal Supreme Court justices sit for life – meaning they may retain office during their geriatric years and open seats via erratic and unpredictable deaths, so that some presidents get many appointments during a term and others none – is highly unusual.

“The United States is the only major constitutional democracy in the world that has no retirement age or fixed term of office for its high court judges,” the documents say. “Among the world’s democracies, at least 27 have term limits for their constitutional courts. And those without term limits, like the UK Supreme Court, usually have age limits. “

The revisions to the material also significantly deepen the various options for implementing term limits. These include various ways of phasing in the system while there are still Supreme Court justices who have been appointed to life seats – a process that could take a generation or two – and how to manage. the situations in which judges may die or resign before the end of their terms.

And the documents explore whether Congress should try to force such a change by enacting a law, whether the more difficult step of proposing a constitutional amendment would be necessary or wiser.

“Members of the Commission are divided over whether Congress has the power, under the Constitution, to create the equivalent of term limits by law,” the documents said. “Some believe that a statutory solution is within the powers of Congress. Others believe that no legislative solution is constitutional, or that a law would raise so many difficult constitutional and implementation questions that it would be unwise to proceed through legislation. Opponents of term limits cite these complexities as reasons to avoid term limits altogether. “

Although the panel’s final report was addressed to Mr Biden, some of his documents laid out ideas the judges might consider regarding their internal rules and practices.

For example, the documents analyzed the Supreme Court’s growing practice of resolving major issues through its so-called shadow case, which it uses to deal with urgent cases brought before it.

While phantom cases can often be of considerable importance, they are usually dealt with quickly, without full briefings or oral arguments. The commission assessed various possible causes and presented some potential changes, including not allowing decisions using such delayed procedures to be considered binding precedents.

The discussion papers also examine whether Supreme Court justices should be subject to a judicial code of ethics, as lower court judges already are. The committee considered whether Congress should impose one on them – which could raise constitutional questions – or whether they should adopt one for themselves.

The documents also addressed the recurring question of whether judges should allow cameras in the courtroom to broadcast their arguments, which the court resisted. Noting that during the Covid-19 pandemic, the court allowed the public to listen to a live audio stream of its arguments, the report suggested keeping this in place as the crisis ends.

“Given the court’s long-standing opposition to cameras, maintaining near-simultaneous audio would be a step forward and allow the media to better cover the work of the court, while still allowing interested members of the bar and the public to better follow the work of the court. court, ”the documents said. “Perhaps more in-depth experience with simultaneous audio will encourage the court to try the cameras as well.”


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