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Commission on Changing Supreme Court Skeptical About Adding Justices

By Ken Thomas

WASHINGTON—A commission formed by President Biden to study potential changes to the Supreme Court expressed concerns over calls to expand the size of the court, with some members warning it would “undermine, rather than enhance” its legitimacy.

Documents released Thursday outlined a range of options that the 36-member panel prepared to discuss at a public meeting Friday. The commission is expected to issue a final report in mid-November amid calls by progressives in the Democratic Party to expand the number of seats, a measure Republicans oppose.

The commission’s members are set to discuss the draft materials, which lay out the history of the court and arguments in support and opposition to possible changes, including its size and the length of service and turnover of justices. The commission said it received testimony from 44 witnesses, written statements from 23 experts and 6,500 submissions of public comment.

Assessing the merits of term limits for justices, the commission said they could “enhance the Court’s legitimacy in the eyes of the public” and make Supreme Court appointments “appear fairer, less arbitrary, and more predictable.”

But the commission also said term limits could destabilize the court, pointing to the possibility that they “could lead to more frequent doctrinal shifts, or even cycles in which major precedents are discarded only to be reinstated later.”

Earlier, the commission’s 16-member “Practitioners’ Committee,” composed of members who have argued more than 400 cases before the Supreme Court, appeared to cast doubt on court expansion.

The committee, in a report filed in July by co-chairs Kenneth Geller and Maureen Mahoney, unanimously agreed that the current size of the court was appropriate and warned that increasing its size “would result in functional drawbacks, especially if the addition of new seats now led to the addition of more seats later.”

The committee wrote in July that a majority believed 18-year term limits, “with each President getting two seats to fill during a four-year term, warrants serious consideration.”

During his campaign, Mr. Biden said he would form a bipartisan commission on the Supreme Court after facing criticism from Republicans who warned that he would support Democratic proposals to “pack” the court by adding members to offset a conservative 6-3 majority following President Donald Trump’s term in office.

Mr. Biden formed the commission in April, charging the panel with examining various reforms. The commission has been led by Bob Bauer, a former Obama White House counsel and top Biden campaign adviser, along with Yale law professor Cristina Rodriguez, a former Justice Department official in the Office of Legal Counsel. It includes top legal scholars, former federal judges and appellate attorneys who have argued before the court, along with leaders of advocacy groups.

White House press secretary Jen Psaki said Thursday the commission would provide “an assessment 
 not a recommendation” to the president with a final report due in mid-November. The White House has said it hasn’t had any input into the documents and Mr. Biden won’t comment on the findings until after he receives the final report.

It remains unclear whether Mr. Biden would endorse any changes in response to the report. During his campaign, Mr. Biden said the court system was “getting out of whack” but made no commitments of possible changes he would endorse.

The commission will provide ‘an assessment 
 not a recommendation’ to President Biden.

— White House Press Secretary Jen Psaki

Advocates for expanding the court have said the conservative majority is out of sync with the public and mainstream legal thinking. Term-limit proponents say lifetime appointments keep the court from reflecting the public’s wishes and give some presidents too much sway. Critics say such moves would further politicize an institution that strives to define itself as separate from partisan agendas.

Democrats have expressed anger that Republicans, who controlled the Senate at the time, refused after Justice Antonin Scalia’s February 2016 death to consider President Barack Obama’s nominee for the Supreme Court, now-Attorney General Merrick Garland. Senate GOP leader Mitch McConnell (R., Ky.) and Republicans said then that a vacancy arising in an election year should be filled by the next president.

But after Justice Ruth Bader Ginsburg’s death in September 2020, Senate Republicans confirmed Justice Amy Coney Barrett days before November’s presidential election, infuriating many Democrats who vowed to push for changes to the court if they regained the majority.

While congressional power over the Supreme Court is limited, lawmakers can decide how many justices will serve on it. When it first met in 1790, the court had six justices; Congress adjusted the number several times, most recently to nine in 1869.

A Supreme Court that repeatedly stymied New Deal initiatives in the 1930s led President Franklin Roosevelt to propose legislation that would add one justice for each member over the age of 70, which would have provided him a majority on the court.

That proposal was widely criticized, including by some fellow Democrats, and failed in Congress, but the court switched its approach after Mr. Roosevelt’s agitation and began to recognize broader federal authority to regulate the national economy.

Write to Ken Thomas at ken.thomas@wsj.com

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