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Biden commission punts on whether to recommend expanding Supreme Court

“The Commission takes no position on the validity or strength” of arguments for or against expanding the number of justices, the report said.
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WASHINGTON — President Joe Biden’s Supreme Court commission does not plan to make a recommendation on whether to expand the court, according to a draft report obtained Monday by NBC News.

“The Commission takes no position on the validity or strength” of arguments for or against increasing the number of justices, the report said.

Instead, the report discusses the historical overview of court reform discussions, scenarios around expanding the Supreme Court, questions about the scope of the judiciary and judicial ethics.

The decision not to make a recommendation is likely to anger liberals who called for adding justices after the confirmation of Justice Amy Coney Barrett.

Biden created the commission in April to study expanding the court. He first proposed the commission as a presidential candidate, when the death of Justice Ruth Bader Ginsburg and the rapid confirmation of then-President Donald Trump’s nominee in the final weeks of the presidential election led many progressives to urge Biden to consider expanding the number of justices. Biden, a former chairman of the Senate Judiciary Committee and a veteran of politically charged confirmation battles, has not publicly embraced such a move.

The commission, made up of more than two dozen experts, reviewed not just questions about the size of the Supreme Court but also structural changes like term limits and reducing the power of the federal judiciary.

The panel's initial findings, released in October based on months of public hearings and research, revealed that its members were divided over altering the structure and the size of the 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. The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise," the October report said.

Monday's draft report details the differences of opinions among commissioners about the questions they were asked to examine. A source familiar with the panel's work said that there has never been a commission of this size on this issue and that the contributions it makes to the debate are unique.

The panel plans to vote Tuesday on whether to adopt the draft as its final official report, which would then be submitted to the White House. Copies are also expected to be sent to Capitol Hill.

The White House has had “no involvement whatsoever” in the work of the commission, sources said.

White House press secretary Jen Psaki said Monday that there is no time frame for when Biden will review the report.

"I would remind you all: It's not recommendations that he either accepts or denies," she told reporters. "He asked this diverse group of experts across the political spectrum, from across the viewpoint spectrum, to look at and assess a range of issues that have long been discussed and debated by Court experts ... and to assess and provide a review of that, not to make, again, 'here are the five recommendations; accept them or deny them.'"