Two conservative members of President Joe Biden’s bipartisan commission examining public debate over U.S. Supreme Court reform, including whether to increase the number of justices, are no longer on the panel.
Caleb Nelson, a law professor at the University of Virginia who clerked for Supreme Court Justice Clarence Thomas, and Jack Goldsmith, a law professor at Harvard who clerked for retired Supreme Court Justice Anthony Kennedy, both resigned from the presidential commission, according to Bloomberg.
“These two commissioners have chosen to bring their involvement to a close,” White House spokesman Andrew Bates said in an emailed statement to Bloomberg. “We respect their decision and very much appreciate the significant contributions that they made during the last 5 months in terms of preparing for these deliberations.”
The White House didn’t specify the reason for Nelson and Goldsmith’s decisions.
The resignations came before the commission held a public meeting on Friday to discuss a draft of preliminary findings, in which the commissioners expressed favorable opinions on creating term limits for Supreme Court justices, but cautioned against adding more justices to the court, an idea championed by the Democrats.
“Commissioners are divided on whether court expansion would be wise,” a readout of the commission’s discussion reads. “Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values.”
“Recent polls suggest that a majority of the public does not support Court expansion,” the panel continued. “And as even some supporters of Court expansion acknowledged during the Commission’s public hearings, the reform—at least if it were done in the next term and all at once—would be perceived by many as a partisan maneuver.”
That being said, the commissioners agreed that the Congress has “broad power” to change the number of justices to the high court.
“As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices,” they wrote.
The 36-member commission, established in April via an executive order, is comprised of a bipartisan group of experts on the Court and the Court reform debate. The commissioners include legal and political science scholars, former federal judges and practitioners who have appeared before the Court, as well as justice system reform advocates.
The commission’s purpose, according to the White House, is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform. The topics it will examine include the genesis of the reform debate; the Court’s role in the constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.
The number of Supreme Court justices was set at six when George Washington, the first U.S. President, signed the Judiciary Act of 1789 into law. It was briefly changed to 10 during the Civil War under Abraham Lincoln. In 1869, the Republican-controlled Congress passed another judiciary act to set the number back to nine, which has remained untouched for more than 150 years.
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