- The Washington Times - Tuesday, December 7, 2021

They studied, listened and debated, and after seven months of work, President Biden’s commission on the Supreme Court failed to recommend any significant changes to the way the justices operate.

While suggesting that term limits deserve a closer look, the panel said there was “profound disagreement” over liberal activists’ proposal to expand the court and give Democrats a chance to appoint more justices, surmounting the 6-3 advantage of Republican appointees.

The toothless final report was adopted and submitted to Mr. Biden on a unanimous vote Tuesday.

Liberal commissioners, who dominated the panel, considered the final version a victory because they managed to block efforts to come out in opposition to expanding the court.

Conservative commissioners said the report was a helpful look at the history of court changes and the options available. They said it avoided politically tinged recommendations from Democrats who are upset at a court they are increasingly failing to control.

“We must approach with great caution and skepticism any proposal that has even the potential to reduce judicial independence,” said David F. Levi, a former federal judge and now a professor at Duke Law School.

Mr. Biden now must decide what to do with the report, which lays out justifications for some of the more contentious changes but leaves him without any official imprimatur to take those steps.

The panel’s liberal members said the report paves a path for the president to reshape the court and that the current environment demands that he do something.

“The hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming,” said Laurence Tribe, a professor at Harvard Law School. “To me, that spells a compelling need to signal that all is not well with the court — that it no longer deserves the nation’s confidence, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.”

Expanding the court is the critical question facing Mr. Biden.

Democrats say the membership is out of “balance” and complain about how the court got there. Republicans refused to confirm a pick by President Obama in 2016 and gave President Trump the chance to fill the seat in 2017, appoint a second justice after contentious debates in 2018 and rush the process to confirm a third nominee in 2020.

Given those efforts, it’s not surprising people see the court as too political, some of the commissioners said.

Several court rulings have dashed liberals’ hopes, helping fuel the calls for action.

“This is a uniquely perilous moment that requires a unique response,” said Nancy Gertner, another retired federal judge and lecturer at Harvard Law School. “One party seeks to constrict the vote, deny fair access to the ballot to people of color. The Supreme Court is enabling those efforts.”

She said the court has helped shape itself by restricting the pool of potential voters, effectively packing itself.

The commission’s report, at nearly 300 pages, acknowledged those sentiments but pointed out that countries that pack courts, such as Venezuela during the term of Hugo Chavez and Turkey under Recep Tayyip Erdogan, are hardly examples of stable democracies.

“As a commission we have endeavored to articulate the contours of that debate as best as we understand them, without purporting to judge the weight of any of the arguments offered in favor or against calls to increase the size of the court,” the report concluded.

The size of the court, which has been set at nine justices since the aftermath of the Civil War, is a matter of law and can be changed by Congress and a president.

Imposing term limits is a more popular idea, especially among the court’s critics.

Still, such a move would be more challenging because the Constitution envisions lifetime tenure. The commission’s report concluded that the justices likely would deem any move to impose term limits through legislation to be unconstitutional.

“It turns out that some of the least controversial reforms, like term limits, would be among the most challenging to implement, and some of the most controversial, like court expansion, would be among the most straightforward as a legal and constitutional manner,” Mr. Tribe said.

The report was submitted less than a week after the justices heard oral arguments in perhaps the most significant case in decades: a challenge to the 1973 Roe v. Wade decision. The ruling established a national constitutional right to abortion and ignited five decades of vicious political battles over the court’s role in mediating social issues.

The sense that the court wields too much power on big decisions governing Americans’ lives crosses party lines.

Mr. Biden’s commission studied ideas for limiting the high court’s reach, such as imposing a supermajority requirement to overturn a congressional statute or giving Congress a path to override judicial decisions.

The solutions most likely to curb the court’s power, though, “are also ones that, absent constitutional amendment, the court would most likely find to be unconstitutional,” commissioners concluded.

The best option is for Congress to assert its own powers, the commission said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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