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Supreme Court Commission to Scrutinize Changes Beyond Expanding Justice Seats

  • April 16, 2021

About seven members will be on each working group, and they will be assigned to gather preliminary research and materials for the entire commission to study and debate for its eventual analysis. The working groups’ mandate would not include making any substantive recommendations, and their meetings are not likely to be public, the people said.

The first working group, they said, would assemble materials to set the stage for the commission’s work, including information on what problems have made changing the Supreme Court a matter of recurring debate, comparisons to historical periods in which there were serious calls for changing the court and criteria for evaluating arguments about changes to the court.

The second working group would gather materials about the Supreme Court’s role in the broader constitutional system, including as a final arbiter of major issues with a legal nexus. Among what it will prepare for are proposals for Congress to strip the court of jurisdiction over certain topics, and ideas such as requiring a supermajority to strike down an act of Congress and creating a mechanism for lawmakers to override court decisions.

The third working group would put together materials about length of service and turnover of justices on the Supreme Court, including proposals to create 18-year terms that are staggered so a seat comes up every two years or to impose a mandatory retirement age on older justices. Many other countries have such a safeguard.

The fourth group would develop materials about the membership and size of the Supreme Court. In addition to looking at the history of expansions and contractions of the number of justices by Congress, it will also examine other plans for reducing partisan tensions over the issue, like creating a nonpartisan commission to recommend potential justices or transforming the court into a rotating panel drawn by lottery from the ranks of sitting appeals court judges.

The last working group would collect materials about concerns about the Supreme Court’s case selection and review powers. These include the plummeting number of cases it resolves each year compared with what it did several generations ago, and its so-called shadow docket, when the court issues emergency orders and summary decisions that resolve important questions without full briefings and arguments.

In addition to the factual and policy questions surrounding the issues, the commission also intends to provide analysis about legal matters, scrutinizing whether proposed reforms could be accomplished by a congressional statute or whether they are likely to require the much heavier lift of amending the Constitution.

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