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Legal experts appointed to study Supreme Court reform discuss 'agnostic' report

ADRIAN FLORIDO, HOST:

It's been eight months since President Biden established a commission to study proposals to reform the U.S. Supreme Court. He formed it in response to immense pressure from Democrats, who thought Republicans had unfairly secured a 6-to-3 conservative majority on the court, first by blocking President Obama's nomination of then-Judge Merrick Garland and then by rushing through the nomination of Amy Coney Barrett late last year. Well, that commission delivered its report to the president this past week. And while it studied a long list of potential reforms, like increasing the number of justices and imposing term limits, it did not make any recommendations to the president.

Given so much at stake as the Supreme Court is set to decide on major issues like abortion rights, we wanted to talk about what comes next, so we called two members of the commission. Laurence Tribe is professor emeritus at Harvard Law School, where he teaches constitutional law. And Judge Thomas Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit. He's now in private practice. Judge Griffith started by telling me why the report did not make any recommendations.

THOMAS GRIFFITH: The unanimous vote to pass the report along to the president was a direct result of the nature of the commission, is we were to lay out the arguments for and against various proposals and leave it to the president and his people to read and digest and see - make their own conclusions based on the arguments that are laid forth. And I hope the American public will do the same. Throughout the process, we were very much in hopes that we were producing something not only for the president but for the American public to read and to see the nature of the debate surrounding the court today.

FLORIDO: Well, I would like to dive in just for a moment on your own diverging views about what might be required, if anything, in terms of addressing, you know, the issues that our nation faces with the Supreme Court. Professor Tribe, you told reporters after your work on the commission was finished that you were not casting a vote of confidence in the court's basic legitimacy because you no longer have that confidence. And you think that the Supreme Court should be expanded. Why?

LAURENCE TRIBE: Because the report ultimately doesn't take a position, it really puts the issue to the American people of whether the court ought to be changed in some fundamental way. I believe it needs fundamental change. I believe that the court, as currently structured, partly as a result of the way in which the three justices nominated and appointed by President Trump got to the court, the court right now is on a very dangerous course in which the normal pendulum swings that one expects to change the court's direction over time back and forth are not going to occur. The court is locked in place in a direction that makes it hard for various groups to exert political power.

The powerful are becoming more powerful as a result of what the court has done, which is why I end up believing that only expanding the court and effectively unpacking the way the court has been packed in recent years can set it back on a more constructive course. It's not a conclusion that I thought I would reach at the outset. I was quite opposed to the idea of adding justices to the court. But in the end, I've concluded, as have a few other commissioners, that nothing short of that will make a sufficient difference.

FLORIDO: Judge Griffith, professor Tribe seems to be saying that the Supreme Court, on the path it's currently on, represents a threat to our democracy in the future. You told reporters after the commission finished its work that, in fact, it's many of these reforms that you're studying, if they were implemented, that would be the real threat to democracy. Why is that?

GRIFFITH: To be sure - judges have very different views about their role, about how to interpret the Constitution, a statute, a regulation. These are matters upon which reasonable people can disagree. And they do, and they did. But never once did I see a partisan agenda in a vote. And too much of the reform proposals, I believe, have that is a premise, that the judges are to somehow reflect - that they do and that they should reflect a partisanship. My view is that to the extent that that does happen in judging, that we ought to call it out and do everything we can to prevent it. And I believe that the proposals for court expansion and even the proposals for term limits have too much of that thinking in them for me to support them.

So I changed my views as well. I came to the commission generally inclined towards term limits - sounded like a reasonable, practical approach to me. But during the course of our discussions, much as professor Tribe changed his views on court expansion, I changed my view on term limits because to me, the arguments in favor of term limits just sound a little bit too much in this idea of judges as being partisan political actors. And I don't think they are. And I don't think we ought to be encouraging them to be that.

FLORIDO: Professor Tribe, do you think the president will do anything?

TRIBE: I really don't know. But I think given all that is on his plate right now - protecting electoral integrity, trying to preserve the economy, trying to worry about the pandemic - the odds that change in the Supreme Court will come any time soon are not high. So I wouldn't hold my breath.

FLORIDO: Judge Griffith?

GRIFFITH: Yeah, I have no idea. That's way out of my lane to predict what the president might but - might do. But I will say this. You know, I'm one of the people that made this bipartisan, right? I'm a - there were a handful of us political conservatives who were brought on to the commission to make it bipartisan. And I have to say, at the outset, I was a bit skeptical about what role we would play and whether we were being used.

And I have to tell you, after the eight months of it, all my skepticism was put to one side because - and I think the president needs to be heartily congratulated for this because what he managed to do and the message that was sent to us throughout was that he wanted a group that would discuss important ideas vigorously but respectfully, one for another. And I think we did that. And I think that is one of the legacies of this commission. And I think it's one that's quite timely for the nation that's bitterly divided right now.

FLORIDO: That was Judge Thomas Griffith, a retired judge from the D.C. Circuit Court of Appeals. We also heard from professor Laurence Tribe, a professor emeritus at Harvard University School of Law. Both were members of the Presidential Commission on the Supreme Court of the United States. Judge Griffith, Professor Tribe, thank you both so much.

GRIFFITH: Thank you very much.

TRIBE: Thank you.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.