WASHINGTON — Proposals to expand the size of the Supreme Court are facing skepticism from some members of the commission that President Biden appointed to consider overhauling the federal judiciary. But there is something closer to a consensus that imposing term limits on the justices is worth exploring.
The glimpses of the commission’s work came in some 200 pages of draft discussion materials released on Thursday. The commission cautioned that the materials had been created by working groups to aid in its deliberations and did not amount to recommendations or a reflection of its views.
Still, the materials indicated differing appraisals of the two most discussed proposals for altering the structure of the Supreme Court.
“Commissioners are divided on whether court expansion would be wise,” one draft paper said. “The risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court’s legitimacy.”
“Recent polls suggest that a majority of the public does not support court expansion,” the paper said. “And as even some supporters of court expansion acknowledged during the commission’s public hearings, the reform — at least if it were done in the near term and all at once — would be perceived by many as a partisan maneuver.”
In a recent interview, Justice Stephen G. Breyer said he was wary of increasing the number of justices, saying that doing so could erode public trust in the court by sending a message that it is at its core a political institution.
“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”
A second draft paper from another working group, on imposing limits on the justices’ tenure, took a different tone.
“Among the proposals for reforming the Supreme Court, term limits for Supreme Court justices appear to enjoy the most widespread and bipartisan support,” the paper said.
“A bipartisan group of experienced Supreme Court practitioners who testified before the commission concluded that an 18-year term limit ‘warrants serious consideration,’” it said, adding that Chief Justice John G. Roberts Jr. and Justices Breyer and Elena Kagan “have noted the potential benefits of term limits.”
What to Know About the Supreme Court Term
A blockbuster term begins. The Supreme Court, now dominated by six Republican appointees, returns to the bench to start a momentous term this fall in which it will consider eliminating the constitutional right to abortion and vastly expanding gun rights.
The big abortion case. The court seems poised to use a challenge to a Mississippi law that bars most abortions after 15 weeks to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The ruling could effectively end legal abortion access for those living in much of the South and Midwest.
A major decision on guns. The court will also consider the constitutionality of a longstanding New York law that imposes strict limits on carrying guns outside the home. The court has not issued a major Second Amendment ruling in more than a decade.
A test for Chief Justice Roberts. The highly charged docket will test the leadership of Chief Justice John G. Roberts Jr., who lost his position at the court’s ideological center with the arrival last fall of Justice Amy Coney Barrett.
A drop in public support. Chief Justice Roberts now leads a court increasingly associated with partisanship. Recent polls show the court is suffering a distinct drop in public support following a spate of unusual late-night summer rulings in politically charged cases.
Progressive groups expressed frustration with what they called the commission’s overly cautious approach.
“This was not even close to being worth the wait,” said Brian Fallon, the executive director of Demand Justice. “The paralysis-by-analysis reflected here is exactly what you would expect from a commission made up mostly of academics, including several die-hard conservatives who are fully content with the status quo.”
Conservative groups took the opposite view, saying the commission was too aggressive.
“Far-left progressives are clearly trying to expand their political power under the guise of ‘court reform,’ destroying the independence of our judiciary and threatening the civil liberties of all Americans,” said Kelly Shackelford, the president of First Liberty Institute.
The commission’s final report is due Nov. 14.
The draft papers said the two main proposals face different kinds of hurdles. Although Democrats’ narrow majorities would create a difficult path for any proposal to alter the court for now, Congress is free to expand the membership of the court, and it has repeatedly altered its size. But imposing term limits is more complicated, and many scholars believe it would require a constitutional amendment.
“Commission members are divided about whether Congress has the power to create a term limits system by statute,” the draft materials said. “Some believe it is possible; others believe any statutory system would encounter so many constitutional problems it would be unwise to proceed that way.”