Biden's Supreme Court commission is 'divided' on whether expanding the court is a good idea

• President Biden's commission to study Supreme Court reforms released draft materials on Thursday.
• Interim findings show the commissioners were divided on a proposal to expand the size of the court.

President Joe Biden's commission to study Supreme Court reforms released draft materials on Thursday, ahead of its final report due next month.

The commissioners wrote they are "divided" on whether a reform proposal that has sparked national debate, adding more justices to the nine-member bench, "would be wise."

Biden introduced the idea of a presidential commission to study the court while he was on the 2020 campaign trail, as liberal activists and some Democrats urged him to consider expanding the number of justices to ensure that it's ideologically balanced. Biden has never publicly embraced that idea.

It's "likely that a 'balanced bench' would continue to produce a significant number of divided results in contested cases, even on an evenly divided Court, keeping the Court at the center of charged political debates, for better or worse," the draft report said.

The commissioners note that the conversation to expand the size of the court stems from 2016, when Senate Republicans, led by then-Majority Leader Mitch McConnell, blocked Merrick Garland, President Barack Obama's court nominee. Garland was going to replace the late Justice Antonin Scalia, who died that February, nine months before the upcoming election. But the seat was filled in April 2017 by Trump's nominee, Justice Neil Gorsuch. McConnell has said it was the "single most consequential" decision he's made in his decades-long public career.

Since then, Democrats have also criticized last year's swift confirmation process of Justice Amy Coney Barrett, who was added to the bench a little over a month after Justice Ruth Bader Ginsburg's death and around a week before the 2020 presidential election. The move went against the wishes of Ginsburg herself, who wanted her successor to be chosen by whoever won the election.

The commissioners wrote that "rather than calm the controversy surrounding the Supreme Court, expansion could further degrade the confirmation process. There could be significant battles over any Justice added by a Court expansion measure."

However, one court reform proposal that commissioners said has gained "bipartisan support" is setting term limits for justices, who currently serve lifetime appointments.

"The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court Justices," the draft report said.

The draft comes as the new Supreme Court term is underway, with the justices considering a number of explosive cases, including challenges to abortion rights and gun laws.

Biden will weigh in on the commission's report once its finalized in mid-November, White House press secretary Jen Psaki said Thursday during a press briefing.

The commission aims to provide an "assessment" and not a "recommendation" on court reforms, she added.

In April, Biden established the 36-member commission made up of a bipartisan group of legal scholars, advocates, former federal judges and practitioners who have appeared before the Supreme Court. The group has engaged in lengthy discussions over the course of three meetings to examine court reform proposals, as well as other areas of the court, including its role in the Constitution and how the justices select cases and review them. They will hold their final meeting on Friday.

Critics, mainly Republicans, have blasted the proposal of adding more justices to the bench as "court packing." Supreme Court Justice Stephen Breyer, the oldest member, has also repeatedly cautioned against the reform, warning that such a move could erode public faith in the institution.

"One party could do it, I guess another party could do it. On the surface, it seems to me that you start changing these things around, and people will lose trust in the court," Breyer told Fox News last month.

The commissioners in their draft materials also pointed out the importance of maintaining the legitimacy and independence of the federal judiciary, writing that the court's "standing with the public and government officials have long been regarded as crucial to the institution."

The court currently has a 6-3 conservative majority after former President Donald Trump appointed three new justices to the bench. McConnell has signaled that he'll likely block a potential Supreme Court nominee from Biden if Republicans take back control of the Senate in the 2022 midterm elections.

The comments prompted liberals to amplify calls for Justice Breyer to retire immediately, so that Biden may choose a replacement while Democrats still hold the Senate. Breyer, 83, has not announced any plans to step down.