The Presidential Commission on the Supreme Court of the United States (PCSCOTUS), also known informally as the Supreme Court commission, was a Presidential Commission established by U.S. PresidentJoe Biden to investigate the idea of reforming the Supreme Court. It was slated to provide a nonpartisan analysis of "the principal arguments in the contemporary public debate for and against Supreme Court reform".[1]
The commission issued its final report on December 8, 2021, which reviewed various legal questions about the Supreme Court. It did not recommend major changes to the operation of the Court, and no reforms resulted from the Commission.
Origins
When Merrick Garland (left) was nominated 237 days before the 2016 presidential election, the Senate refused to conduct hearings. When Amy Coney Barrett (right) was nominated 35 days before the 2020 presidential election, the Senate approved her nomination.
Months before the commission was established, Amy Coney Barrett had been nominated to the Supreme Court by then-president Donald Trump.[2] This nomination was controversial. In 2016, Republicans had invoked the informal and seldom-used Thurmond rule to block the nomination of Merrick Garland, based on its proximity to a presidential election.[3] Garland's nomination had come nearly 10 months before the 2016 United States presidential election. However, Trump's nomination of Barrett came just over one month before the 2020 United States presidential election, and was appointed to the court. Many Democrats interpreted this as unjust, and proof of politicization in Supreme Court nominations.[4] This grievance, along with the Republicans' resulting 6-3 majority, led to pressure from some Democrats to respond accordingly.[5]
Proposals from Democrats
During the 2020 Democratic primaries, Pete Buttigieg proposed that the size of the Supreme Court be increased to 15, in order to reduce the significance of partisanship. He described the proposal as "no more a departure from norms than what the Republicans did to get the judiciary to the place it is today”.[6]
Rather than a specific proposal, Biden signaled the idea of the commission on the 2020 campaign trail, saying the court was "getting out of whack". Biden also stated that "it’s not about court-packing,” adding that "there’s a number of other things that our constitutional scholars have debated… the last thing we need to do is turn the Supreme Court into just a political football".[7] Biden won the Democratic primary, and then the 2020 United States presidency.
Commencement
The commission was established through Executive Order 14023, issued on April 9, 2021.[8] The order determined that the commission must issue a report within 180 days of its first public meeting,[1] which took place May 19, 2021.[9]
An editorial of The Wall Street Journal wrote that the commission's membership "tilts sharply to the legal and political left",[10] and the libertarian Cato Institute estimated the ratio of progressives to conservatives as 3:1.[11] However, an article in Vox described the membership as a "win for the [conservative] Federalist Society", saying that "while the author of one of the most significant attacks on Obamacare in the last decade [Thomas B. Griffith] is on Biden’s commission, none of the leading academic proponents of Supreme Court reform were appointed". These leading academic proponents included Daniel Epps and Ganesh Sitaraman, who had authored Pete Buttigieg's proposal to expand the Supreme Court, and who were not invited to the commission.[12]
The final report was submitted to President Biden on December 7, 2021 with unanimous approval.[13] The 300-page final report reviewed the history and legal significance of various questions around the Supreme Court, but did not support any structural changes.[14] While it was generally supportive of allowing TV cameras in the courtroom, it did not take a position on issues such as term limits or expanding the court.[13]
Biden had not asked the commission for recommendations, and did not commit to a specific timeline to review the report. This led to criticism that the report was not seriously intended to improve the institution. Some progressive members of the commission specified that their approval was to submit the report to Biden, not a vote to retain the status quo.[14]
As of 2024, no legal reforms have resulted from the commission.
