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Biden Supreme Court commission gathers for first time

A general view of the U.S. Supreme Court building in Washington, U.S., November 15, 2016. (Carlos Barria/Reuters via CN)

WASHINGTON (CN) — A commission formed by President Joe Biden to study possible changes to the U.S. Supreme Court met for the first time Wednesday, adopting bylaws, swearing in its membership and outlining the scope of its research.

The president signed an executive order establishing the commission in April. Wednesday’s meeting starts a 180-day clock for the members to report the findings of their examination on the court’s membership, case selection and overall role in the federal government.

The commission’s bylaws were adopted near unanimously, the only exception being a couple of members who were not present — law professors Laurence Tribe and Andrew Manuel Crespo.

Bob Bauer – a former White House counsel, professor of law at New York University and one of the commission’s co-chairs – outlined six additional committee meetings, two of which will include public testimony. Some hearings might including both afternoon and morning testimony from up to two dozen witnesses before the committee’s full panel. The next meeting is expected in late June with another scheduled for July.

During the meetings, the commission will hear testimony from witnesses and then ask questions of those present, much like House or Senate committee hearings. Deliberations on drafting a final analysis of this testimony will be done in a public setting, the conclusions of which will be posted on the panel’s website.

The website also will include a section for members of the public to submit written comments about Supreme Court reform. Bauer said public comment should be submitted no later than Aug. 15 for proper consideration.

The commission will look into five specific areas of research, according to Kate Andrias, the commission’s rapporteur. They include the genesis of debate over Supreme Court reforms, the court’s role in the constitutional system, the length of service and turnover of justices, membership and size of the high court, and how the court selects which cases to review.

Nancy Gertner, a former federal judge from Massachusetts, said the commission would examine recommendations for expanding membership of the court and the strengths and weaknesses of those proposals. A proposal from a group of Democratic House and Senate lawmakers to expand the court from nine to 13 justices was introduced last month.

“We’ll look at current proposals to expand the membership and size of the Supreme Court and whether those proposals require other reforms,” Gertner said. “An expanded court, for example, might require a panel system for deciding cases. An expanded court couldn’t possibly sit on all cases all the time.”

Review of the court’s acceptance of cases will include an examination of what is known as the “shadow docket” — a name given to a legal procedure in which justices accelerate decisions without hearing oral arguments or issuing signed rulings.

Bert Huang, a Columbia University law school professor, said the panel will consider concerns about those unassigned decisions, often handed down with no explanations.

“We will also consider a range of perspectives about the court’s discretionary power to decide which cases to hear, about other aspects of the certiorari process, or merit stage briefing and argument and about transparency in the work of the court, as well as the ethical norms that govern its work,” Huang said.

Fix the Court Director Gabe Roth wrote in an email Wednesday that Americans want a Supreme Court independent of political influence that follows basic transparency measures and justices who serve for shorter periods of time.

“As the commission’s work begins, a wide majority of Americans already believes that significant changes must occur at the Supreme Court to preserve its legitimacy in an increasingly polarized world,” Roth said.

The panel’s inaugural meeting was held just two days after the Supreme Court agreed to hear a case in the fall that will determine the constitutionality of Mississippi’s extreme ban on abortions after 15 weeks of pregnancy. The case could allow the now staunchly conservative court to dramatically alter nearly 50 years of abortion rights jurisprudence.