The Presidential Commission on the Supreme Court recently released its first report, suggesting that instead of expansion that justices be rotated.
The report comes after calls for expanding the Supreme Court from some congressional Democrats earlier this year. The current conservative majority has lead to 5-4 rulings that have upset progressives and the left.
“There are also reasons to doubt that Court expansion necessarily would produce benefits in terms of diversity of efficiency,” said the Commission report.
“There is no guarantee that a larger Court would be drawn from a more diverse group of individuals. And a larger court may be less efficient than the current complement of justices.”
Democrats had argued that Republicans had unfairly obtained a conservative majority after former President Donald Trump filled three vacancies during his one presidential term.
After expressing past opposition to the court’s expansion, President Joe Biden instead called for a commission to study reform. The commission is composed of a bipartisan group of legal experts.
The presidential commission’s draft report expressed skepticism about the push by progressives to add justices to the court. They warned that such a move would be viewed as a partisan maneuver that could backfire on its proponents and that expansion would undermine the court’s legitimacy.
Risks outweigh expansion
The commission pointed out risks to expanding the court, including polling that shows that the public does not want an expansion. They also noted that expanding the court may lead to a “continuous cycle of future expansions.”
The report continued, “To be sure, any Supreme Court reform would likely require unified government. 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 commission offered one alternative to expansion — a rotation system. The system would have justices rotate between Supreme Court service and in lower federal courts.
The report notes that a reform could face a “constitutional obstacle,” mentioning that Article III, Section I of the Constitution states that “the judicial Power of the United States, shall be vested in one supreme Court, and in such interior Courts as the Congress may from time to time ordain and establish.”
The commission’s report stated several potential drawbacks to a rotation system, including that the system could “introduce inefficiencies into the court’s work,” even if they were deemed legal.
Additionally, the commission considered the question of whether justices should be subject to term limits. The report said moving to a system with term limits would involve “significant practical changes” and could cause difficulties for justices’ careers following their service.