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April 9, 2021

Might new "Commission on the Supreme Court" perhaps consider recommending creating a sentencing supreme court?

The question in the title of this post is my sentencing-addled reaction to this news today from the White House: "President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States."

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. 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.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

Long-time readers know I spend a good bit of time in this space complaining about the fact that SCOTUS does not take up enough sentencing issues (see one recent example here).  Though I seriously doubt that this new Commission will focus on the need I see for a supreme court that takes more sentencing cases, I am always serious in my view that there are many, many important sentencing issues that need more attention.

April 9, 2021 at 02:08 PM | Permalink


Changes in the lifetime tenure of the Justices (or any Federal Judge) or any kind of term limits on non-lifetime terms would require a Constitutional Amendment. The last amendment to the U.S. Constitution took 23 years to pass and adopt. That is a daunting task. This issue about expanding the number of Justices is strangely complicated by the fact that the Constitution fails to specify the number of Justices who shall serve upon the Supreme Court. Arguably, it would take at least an Act of Congress, signed by the President, to increase the number of Justices on the Supreme Court. This would be the easier and quicker path for President Biden and a Democratic controlled Congress to take.

Posted by: Jim Gormley | Apr 10, 2021 8:29:18 PM

The commission is intended to provide political cover for expanding the Court. It's not likely to happen, for a host of reasons. Manchin probably wouldn't go along. And surely the Democrats recognize that if they were to expand the Court in order to appoint more justices to their liking, the Republicans would respond in kind the next time they have the opportunity.

Posted by: William C Jockusch | Apr 12, 2021 7:22:30 PM

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