The panel President Joe Biden appointed to consider reforming the Supreme Court released a preliminary report Thursday addressing the “real risk” of expanding the court, a move pushed by some progressives.
In its preliminary report, the bipartisan Supreme Court commission agreed that Congress can legally expand the Supreme Court, known as court-packing, but the panel was at odds over whether an expansion is wise.
“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,” the commission said in the draft “discussion materials” from the White House.
While some commissioners agree with some of the reasoning behind expanding the court beyond nine justices, other commissioners think an expansion “is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system,” the report said.
“We have not sought to determine whether any particular perspective on the confirmation process or on the Court’s composition today is ‘correct,’” the commission stated, adding that, “any lawmaker contemplating Supreme Court reform should be aware that the pursuit of immediate Court expansion would involve taking a position in a partisan contest in which opinion is deeply divided.”
The discussion document also weighed the potential benefits of expanding the court.
“Decisions by a more diverse judiciary might be more informed,” the commission wrote. “More generally, a Court that was drawn from a broader cross-section of society might be viewed as more acceptable to the public.”
Nevertheless, progressives were not pleased with the panel’s words of caution on court-packing.
“This report is an abomination. It assumes that today’s Supreme Court is basically apolitical while fretting that reforms with any real teeth would politicize it, and potentially break democracy. Republicans must be thrilled with this outcome. It’s a gift to the GOP,” tweeted Slate writer Mark Joseph Stern.
President Russ Feingold of the American Constitution Society, a progressive legal group, said in a statement that the commission must “advance a specific list of Supreme Court reforms that can be acted upon in the near term” in order to provide a “meaningful contribution to restoring the legitimacy of our judiciary.”
“The discussion materials released today, unfortunately, fail to match the urgency of the situation and do not lay out a solution to the legitimacy crisis before us,” Feingold said.
Over the last few years, several high-profile Democrats have joined progressive activists in calling for adding justices to the bench.
In April, Sen. Ed Markey (D-MA) and Rep. Jerry Nadler (D-NY) led Democrats in introducing a bill to expand the court to 13 justices. Reps. Hank Johnson (D-GA) and Mondaire Jones (D-NY) co-sponsored the bill.
House Speaker Nancy Pelosi has not yet warmed to the idea, however.
“I don’t know that that’s a good idea or bad idea. I think it’s an idea that should be considered,” she said in April of expanding the court. “And I think the president’s taking the right approach to have a commission to study such a thing. It’s a big step.”
The discussion materials were released ahead of the commission’s public meeting on Friday, where they will be discussed.
The Supreme Court began a new term this month and will hear its first in-person oral arguments since the court began hearing cases virtually when the COVID-19 pandemic began. The court is set to hear several cases on controversial issues, including a challenge to a Mississippi law that bans most abortions after 15 weeks of pregnancy. Other upcoming cases include a case challenging the constitutionality of a New York concealed-carry gun law and a case involving whether state dollars should go to private religious schools.