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Biden's Supreme Court commission steers clear of controversial issues in draft report

The Presidential Commission on the Supreme Court is unlikely to vote to recommend any major structural changes to the high court.
J. Scott Applewhite
The Presidential Commission on the Supreme Court is unlikely to vote to recommend any major structural changes to the high court.

Updated December 6, 2021 at 8:24 PM ET

The Presidential Commission on the Supreme Court is to vote Tuesday on its final report and recommendations, but the panel steers clear of taking a position on many of the most controversial suggestions for changing the court.

Still, the report states pretty unequivocally that Congress does have the power to enlarge the court, but it takes no position on doing so. On term limits, it seems to suggest that a constitutional amendment is likely necessary, and it points to the practical difficulties of implementing term limits at the same time that there are sitting justices with life terms on the court.

The report does take positions on lesser topics, clearly endorsing at least an advisory code of ethics for the justices, advising changes in the management of the court's emergency docket, and recommending that all public audio of court arguments and opinion announcements be simultaneously released.

This is a document that, according to those familiar with it, tries to put various proposals in context, for example, explaining the practical difficulties of implementing term limits, as well as the benefits.

The report by the commission, which was established by President Biden to study what changes might be needed at the Supreme Court, is almost certain to face criticism from the right and the left.

It likely won't please any of the major players in the debate over the court's make-up, how justices are picked and confirmed, and whether it is time to expand the number of justices or enact term limits. As the report noted in its executive summary: "Mirroring the broader public debate, there is profound disagreement among Commissioners on these issues." Rather, those familiar with the report say it is intended to provide a thorough history and context for debate on these topics.

Biden set up the commission in April, keeping a campaign promise he made when repeatedly pressed on whether he would expand the Supreme Court to pack it with justices more aligned with his worldview. Candidate Biden said he opposed expanding the court but said he favored the kind of bipartisan commission that the White House set up.

The commission, co-chaired by former White House counsel Bob Bauer and former Deputy Assistant Attorney General Cristina Rodríguez, includes legal and other scholars as well as former federal judges and practitioners who have appeared before the court; advocates for the reform of democratic institutions and of the administration of justice; and experts on constitutional law, history and political science. With 34 members, the panel is racially, ethnically and ideologically diverse.

It is unclear whether and when Biden will act on the commission's recommendation. He would need congressional action to approve any changes to the nation's highest court, but lacks the numbers to bring about such change.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.