Biden to Form Commission to Study Packing the Supreme Court

Written by Martin Walsh

OPINION: This article contains commentary which reflects the author's opinion




Joe Biden is set to issue an executive order on Friday forming a bipartisan commission that will perform a 180-day study of potential changes to the Supreme Court, including court-packing and setting term limits for justices.

“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 White House said in a statement.

“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,” the White House added.

New York Times reported:

In his executive order on Friday, the president will create a 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.

The panel will be led by Bob Bauer, who served as White House counsel for Mr. Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.

Progressives say that Republicans unfairly gained an advantage on the court by blocking Mr. Obama’s nomination of Judge Merrick B. Garland in 2016, and they see adding seats to the court, setting term limits, or instituting other changes as a way to offset the power of anyone president to influence its makeup. Conservatives have denounced the effort as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.

The order comes after Liberal Justice Stephen Breyer cautioned earlier this week that court-packing for political gain could undermine public trust in the court and its decisions.

“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” the justice said.

“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” he said. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 [Trump v. Biden] election.”

The liberal justice, who at 82 years old is the oldest judge on the court, has faced calls from progressive groups to retire while Democrats control the Senate and the confirmation process.

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The late Justice Ruth Bader Ginsburg also expressed her concerns about packing the court before her death.

“Nine seems to be a good number. It’s been that way for a long time,” Justice Ginsburg said. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”