On Friday, President Biden signed an executive order establishing a commission to study the effects of expanding the Supreme Court, an unpopular proposal many fear would turn the highest court into another partisan branch of government.
Biden, who purposely refused to take a public side on the issue during the 2020 campaign, again did not announce his position on the controversial issue. While on the campaign trail, instead of answering repeated requests from reporters to take a stance, then candidate Biden pledged to establish a commission to both review proposals and make a recommendation to him.
Many far-left activists have urged Biden to expand the Supreme Court after President Trump appointed his third justice – Amy Coney Barrett – in his four year term, giving conservatives a 6-3 majority. Though Chief Justice Roberts seldom sides with the other 5 Republican appointed justices in controversial issues. They fear Trump’s judicial appointments will give conservatives an advantage as future bills are argued before the court, extending their influence regardless of who’s in power.
“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,” a statement released by the White House says.
The 36 members are instructed to submit a report following their review of how our highest court functions to the White House with their analysis of positions for and against potential reform. Though people familiar with the commission have told the New York Times that no official stance by the commission will accompany said report.
“It is not clear that the commission established by Mr. Biden will by itself clarify his position. Under the White House order establishing it, the commission is not set to issue specific recommendations at the end of its study — an outcome that is likely to disappoint activists,” the Times reported.
Members will analyze potential reform proposed by politicians related to the Supreme Court, turnover rate and tenure for justices, the process of Justice selection both by the President and their confirmation by the Senate, the courts’ size, and “contemporary commentary and debate” around said reform.
In their report to President Biden, the commission must also include “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,” giving members the power to write into existence the motivation for a particular political view. And while the executive order does not specifically call on the commission to issue a recommendation, individual members will likely make their position known.
The commission will consist of 36 Constitutional scholars, former judges, and members of the Clinton and Obama administrations. “In addition to legal and other scholars,” the statement reads, “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.” Two members severed in the Clinton White House, and five served under Obama.
Co-Chairs Cristina Rodríguez and Bob Bauer, both served in the Obama administration. Rodriguez served as Deputy Assistant Attorney General in the Office of Legal Counsel, and Bauer was Obama’s White House Counsel.
Members of both parties can be found on the commission, but members ideology is tilted in favor of Democrats.
Constitutional scholars, and Supreme Court Justices from all sides of the political spectrum, including Democrat favorites like Justice Stephen Breyer, and the late Justice Ruth Bader Ginsburg have come out against court packing.
Justice Breyer argues court packing court jeopardize “the trust that the court has gradually built.”
“I hope and expect that the court will retain its authority … which was hard won. But that authority, like the rule of law, depends on trust. A trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” Breyer added.
“Nine seems to be a good number. It’s been that way for a long time,” Ginsburg said in 2019, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
“If anything [packing the court] would make the court look partisan,” she said, “it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'”
FDR was the last president to formally attempt such a policy, and was swiftly blocked by the Democrat controlled Congress. His plan would have increased the number of justices from 9, a number held constant since the mid 1800’s, to 15, after several New Deal laws were ruled unconstitutional. The number of justices has fluctuated between 5 and 10 since the court’s founding.
The commission is required to host an unspecified number of public forum discussions with outside scholars, judges, and advocates throughout the 180 day period.