What Biden's Supreme Court Commission Found, and What It Left Unsaid

On December 7, 2021, a group of law professors, former judges and practitioners voted to send a long final report to President Joe Biden. The document had taken eight months, public hearings and testimony from many witnesses to produce. It was careful, learned and, on the questions that most people wanted answered, almost entirely silent. The Presidential Commission on the Supreme Court of the United States had been asked to study the arguments for and against reforming the Court, and that is precisely what it did: it studied them. It did not tell the president what to do. Reading the report now, after Dobbs, after the ethics revelations, after the immunity ruling and after the rise of the emergency docket, is a strange experience. It is like reading a weather forecast for a storm that had already started.

In short: Biden's Supreme Court commission produced a thorough survey of reform proposals in December 2021, including Court expansion and 18-year terms, but by design made no recommendations on the most contested questions. It noted broad scholarly interest in term limits and deep division over expansion. The events that followed tested its cautious approach, and the questions it left open are still the ones reformers have to answer.

How the commission came to be

During the 2020 campaign, Biden faced pressure from parts of his party to support adding seats to the Supreme Court, especially after Justice Ruth Bader Ginsburg died in September and the Senate confirmed Amy Coney Barrett in the weeks before the election. He declined to endorse expansion. Instead, he promised a bipartisan commission to study reform.

He kept that promise in April 2021 with an executive order creating the Presidential Commission on the Supreme Court of the United States. It was co-chaired by Bob Bauer, a former White House counsel under Barack Obama, and Cristina Rodríguez, a Yale law professor who had served in the Justice Department's Office of Legal Counsel. Its members spanned the ideological range, from liberal scholars to well-known conservatives.

The commission's mandate was narrow by design. The executive order directed it to produce an account of the contemporary debate over reform, including the arguments for and against specific proposals, and to analyze the history of reform efforts. It was not asked to recommend a course of action, and it did not.

What it said about expansion

The section on enlarging the Court is the one most people turned to first, and it is a model of balance. The report explained that the Constitution does not fix the Court's size, that Congress has changed it before, and that there is little doubt about Congress's legal power to do so again. It described the arguments of supporters: that the Court had been reshaped by hardball tactics, including the refusal to consider Merrick Garland in 2016 and the rushed Barrett confirmation, and that expansion could restore balance.

Then it described the arguments against. Expansion might provoke retaliation, with each new majority adding seats of its own. It could damage the Court's legitimacy and independence. It might be seen as an attack on the institution rather than a reform.

The commission reported that its members were deeply divided on whether expansion would be wise. That was the finding. The report did not say whether the arguments for expansion were stronger or weaker than the arguments against.

What it said about term limits

On term limits, the report showed more energy. It described the case for fixed, staggered terms of eighteen years, with a new justice appointed every two years, so that each president would get two appointments per four-year term. It noted that the United States is unusual among constitutional democracies in giving high court judges life tenure without a mandatory retirement age, and that nearly every state limits the terms of its own highest court judges in some way, through fixed terms, retirement ages or retention elections.

The commission observed that term limits had drawn considerable support from scholars across the ideological spectrum, which is true and important. It spent most of its energy on a hard question: could Congress impose term limits by statute, or would it take a constitutional amendment? Article III says judges "shall hold their Offices during good Behaviour." Some proposals would keep justices in office as federal judges after their eighteen years, rotating them to lower courts or senior status, and argue that this preserves life tenure in the office while limiting active service on the Supreme Court. The report explained that many commissioners doubted a statute could accomplish this, and that the constitutional questions were serious. It did not resolve them.

The rest of the report

The commission's report covered more ground than expansion and term limits. It discussed proposals to limit the Court's jurisdiction over certain kinds of cases, to require supermajorities of justices to strike down federal laws, and to give Congress power to override certain decisions. It described these proposals' history, which reaches back to the founding era, and their risks, including the possibility that they would simply move disputes elsewhere or create new constitutional fights.

It also addressed the Court's own practices. It discussed the growth of the emergency docket and the concern that consequential rulings were being made without full briefing or explanation. It touched on transparency, including whether oral arguments should be broadcast. It said less about ethics than its later critics wished it had.

The tone throughout was scholarly. The report is useful as a reference: if you want to understand the history of a reform proposal and the strongest arguments on both sides, it is a good place to start.

What the commission left unsaid

The problem with a report that describes every side of a debate without taking one is that it leaves the decision to whoever is reading. In this case, that was a president who had already declined to back expansion and a Congress that was closely divided. The result was predictable: nothing happened.

Here is my argument about why that mattered. The commission was created in part to defuse political pressure, and it did. But it treated the Court's legitimacy as an abstract question to be weighed against other abstract questions, when the evidence of a legitimacy problem was already visible. Public trust in the Court had been falling. The confirmations of 2016 through 2020 had been the most bitter in modern memory. And the Court was preparing to hear a case that would decide whether Roe v. Wade would survive.

Within months, it did not. In June 2022, the Court decided Dobbs v. Jackson Women's Health Organization, overruling Roe and Planned Parenthood v. Casey and returning abortion regulation to the states. A draft of the opinion had leaked weeks earlier, an unprecedented breach that deepened the sense of an institution under strain.

In 2023, investigative reporting by ProPublica and others revealed that Justice Clarence Thomas had accepted luxury travel and other benefits from the Texas billionaire Harlan Crow over many years without disclosing them, and raised questions about other justices' outside relationships. In November 2023, the Court adopted its first formal code of conduct, but the code had no enforcement mechanism and left recusal decisions to each justice. In July 2024, in Trump v. United States, the Court held that former presidents have substantial immunity from criminal prosecution for official acts.

The commission could not have foreseen every event. But its silence on the central question, whether the Court as constituted was functioning as a legitimate check or had become something else, looks less like neutrality in hindsight and more like a missed chance.

The fair defense of the commission's approach

It is worth stating the strongest case for what the commission did, because it is a real case. A presidential commission that recommended expanding the Court would have been dismissed as a partisan exercise, and its conservative members would likely have dissented loudly or resigned. A commission that recommended against expansion would have angered the president's base and might have foreclosed options. By describing rather than recommending, the commission produced a document that people across the spectrum could trust as an honest map of the arguments.

There is also a principled point. Questions about the structure of the Court are, in the end, political questions for Congress and the people. A group of experts appointed by one president is not the right body to settle them. The commission's job was to inform that democratic debate, not to replace it.

I accept that argument as far as it goes. The answer is that informing a debate requires naming what is at stake, and the report often stopped short of that. A map that shows every road but does not mark which bridge is out is not neutral; it is incomplete.

Three questions the report made easier to ask

For all its caution, the report left readers better equipped. Read closely, it sharpens three questions that any serious reform effort has to answer, and it is worth stating them plainly because the public debate often skips them.

The first is about the problem. What exactly is wrong with the Court? One answer is that its composition is unfair, the product of a blocked nomination in 2016, a rushed one in 2020 and the luck of when justices die. Another is that its power has grown too large, whoever sits on it. A third is that its practices, from ethics to the emergency docket, lack accountability. Each diagnosis points to a different cure. Adding seats addresses composition. Jurisdiction limits and supermajority rules address power. Ethics codes and transparency rules address practices. Reformers who mix the diagnoses tend to end up with proposals that persuade no one.

The second is about durability. Will the reform survive a change in power? A change that one party can make and the next party can undo is not much of a reform. The report's discussion of retaliation against expansion is, at bottom, an argument about durability. Term limits fared better in the report partly because a fixed schedule is neutral between parties and harder to reverse for advantage.

The third is about the vehicle. Statute, constitutional amendment, or the Court's own rules? Some changes, such as setting the number of justices, plainly fall within Congress's power. Others, such as limiting tenure, raise constitutional questions that may require an amendment. Still others, such as ethics rules, could be adopted by the Court itself, which is what happened, in part, in 2023. Picking the right vehicle determines how fast a reform can move and how likely it is to survive a court challenge.

Those questions do not answer themselves. But anyone who reads the report will see them more clearly, and that is a real contribution.

Ethics: the piece Congress has already started on

Of all the reform areas, ethics is the one where Congress has done the most since the commission reported. After the 2023 revelations about undisclosed gifts and travel, the Senate Judiciary Committee advanced legislation that year to require the justices to adopt a binding code of conduct, with procedures for handling complaints and recusal motions. The vote in committee split along party lines, and the bill did not become law.

Opponents raised a serious objection: that Congress may not have power to impose an ethics code on a coequal branch, and that doing so would compromise judicial independence. Chief Justice Roberts declined an invitation to testify before the committee in 2023, citing separation-of-powers concerns. Supporters answered that Congress already regulates the justices in many ways, including through financial disclosure laws and the federal recusal statute, and that a binding code is a modest extension.

The Court's own code, adopted that November, answered some of the criticism by putting its standards in writing. It left enforcement to each justice. For most reformers, that gap is the heart of the matter: a rule that no one can enforce depends entirely on the good faith of the person bound by it.

What came after

In July 2024, Biden went further than his commission had. In a speech at the LBJ Presidential Library, he endorsed eighteen-year terms for justices, a binding and enforceable code of conduct, and a constitutional amendment to reverse the Court's immunity ruling. Those proposals did not pass the Congress then in office. They did put a sitting president's weight behind term limits.

Since then, the debate has shifted again. The Court's handling of the emergency docket during Donald Trump's second term, including orders allowing him to remove officials at independent agencies and limiting nationwide injunctions, has made the questions the commission raised more urgent. Democrats won the House and the Senate in November 2026, and the new Congress will be sworn in on January 3, 2027. Whether it takes up court reform, and in what form, is a question for the coming months; no outcome is settled.

What you can do

1. Follow the Court's work in its own words. The Court Watch page lists this term's Supreme Court opinions with the Court's summaries, the emergency docket and the Senate's votes on judges, a good way to judge for yourself how the institution is functioning.
2. Read the reform arguments side by side. The court reform coverage collects reporting on term limits, ethics rules and expansion.
3. Ask your incoming members where they stand. Use the representatives page to find your House member and senators, their contact details and latest votes, and ask whether they support an enforceable ethics code and term limits.
4. See who leads on the issue. The progressive caucus page covers the Congressional Progressive Caucus and the Democratic leaders who will set the new majority's priorities.
5. Read the commission report itself. It is long, but its chapters on term limits and the Court's size are among the clearest explanations of those debates available anywhere, and you will come away better armed for any argument about reform.