A presidential commission studying proposals to change the US Supreme Court is divided on the wisdom of expanding the number of justices, and the ability of Congress to impose term limits by statute, reports the ABA Journal.

The commission, created by President Joe Biden in April, released draft documents last week.

According to the ABA Journal, the 36-member body concluded that Congress had broad power to expand or shrink the size of the Supreme Court, but “commissioners are divided on whether court expansion would be wise”.

Risk of ‘repeated fights’

The report said that a larger court might be able to decide more cases, and spend more time on emergency petitions. It added that presidents selecting judges for an expanded court would have a greater chance to “select individuals who reflect the rich diversity of the nation”.

Supporters also argue that expansion could help restore balance to the court and increase its legitimacy, according to the ABA Journal.

The report warned, however, that a larger court would be perceived by many as a partisan manoeuvre – at least if it were done soon and all at once. It also expressed concerns that court expansion today could lead to a continuous cycle of future increases.

“If the country and the political system were to be embroiled in repeated fights over court expansion,” the draft document said, “that alone could harm the Supreme Court’s public reputation.”

Term limits

Turning to term limits, the report said commission members were divided on whether Congress had the power to impose such limits by statute.

“Some believe it is possible; others believe any statutory system would encounter so many constitutional problems it would be unwise to proceed that way,” the report said.

Those favouring term limits argue that they would make judicial appointments “more predictable, and the composition of the US Supreme Court more rationally related to the outcome of democratic elections over time,” the report said.

In addition, regular appointments could make the appointment process seem more fair and less arbitrary.

But the commission warned that term limits might destabilise Supreme Court doctrine, if new justices were willing to overrule their predecessors or narrow their precedents. In addition, litigants might try to time cases based on whether a favoured or unfavoured justice would still be on the court.

Meanwhile, the commission expressed support for a code of conduct for the Supreme Court, and for continued live audio of oral arguments.