President Biden’s Commission on the Supreme Court of the United States voted today to submit its final report to the President. I am honored to have served on the Commission, which also included a number of academics and others who work on election-law issues: Bob Bauer (co-chair); Heather Gerken; Guy-Uriel Charles; Sherrilyn Ifill; Michael Kang; Bertrall Ross; and Michael Waldman.
From the Washington Post:
A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but“profound disagreement” about adding justices.
Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump.
In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document….
Among the proposals the commission considered are term limits for justices, who currently have life tenure and often serve for decades. Until the late 1960s, the average term was 15 years, but has now increased to about 26 years. Justice Clarence Thomas, the longest serving justice, joined the bench 30 years ago.
Should Congress seek to impose term limits, the commission suggests a constitutional amendment would be the preferred approach rather than a change in statute. The report cautions that any change driven by lawmakers could face a constitutional challenge to be decided by the Supreme Court, raising questions about whether the justices could even review such a case.
The commission also concludes that Congress has broad authority to increase the number of justices but takes no position on expansion, noting the “profound disagreement among commissioners on this issue.”
In recent months, the court has been criticized for its handling of emergency requests through what has come to be known as the “shadow docket.” The report includes several suggestions for enhancing transparency and says the justices would benefit from “providing insight into its reasoning, reinforcing procedural consistency, and avoiding any possible appearance of arbitrariness or bias.”
The commissioners also agree that the court should adopt an advisory code of conduct that would “demonstrate its dedication to an ethical culture” and continue live-streaming audio of oral arguments, which began during the coronavirus pandemic, so that the public can better follow its work.