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Amy Sherman
By Amy Sherman April 15, 2021

Biden forms commission to study changing Supreme Court

President Joe Biden appointed a commission to study changing the U.S. Supreme Court, including the controversial idea to expand the number of justices.

The Presidential Commission on the Supreme Court has 180 days to complete its study following its first public meeting. The White House said in a statement that the panel would provide an "analysis" for and against Supreme Court reform, which means it may disappoint liberals who are hoping for recommendations to overhaul the court.

"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 wrote

The members include academics, former federal judges, lawyers and experts on constitutional law, history and political science. 

The two co-chairs are Bob Bauer, a New York University law school professor and lawyer for the Biden campaign who was White House counsel under President Barack Obama; and Cristina Rodriguez, a Yale law professor and deputy assistant attorney general during Obama's tenure. 

The commission is tilted toward liberals, but includes members who are conservatives or have worked in Republican administrations or were appointed by Republicans. Members include Jack Goldsmith, a Harvard law professor who served as assistant attorney general during President George W. Bush's administration; Adam White, a resident scholar at the American Enterprise Institute and an assistant professor of law at George Mason University's Antonin Scalia Law School; and retired judge Thomas B. Griffith, who was appointed to the  U. S. Court of Appeals for the D.C. Circuit by Bush.

"This is not a commission that is one-sided or will have an easy time reaching unanimity," said Norm Ornstein, emeritus scholar with the American Enterprise Institute.

Some ideas that it's expected to consider would require overcoming big hurdles.

The size of the U.S. Supreme Court has remained at nine justices since 1869.

"The size can be changed by statute and has, several times, over the course of our history," said Sara C. Benesh, political scientist at University of Wisconsin-Milwaukee. "Other proposals that flit around from time to time, including instituting a mandatory retirement age or setting explicit terms of service (e.g., fixed 10 year term), would require a constitutional amendment."

House Judiciary Committee Chairman Jerrold Nadler of New York, along with other House and Senate Democrats, introduced legislation April 15 to expand the court to 13 justices. But House Speaker Nancy Pelosi said she won't bring the bill to a vote, deferring to Biden's commission to study reforms.

During the campaign, Biden promised to create a bipartisan commission to create recommendations for court reform, saying the system was "getting out of whack." Biden didn't say explicitly whether he wanted more justices on the court, but said his proposed commission was "not about court packing."

Some Democrats have called for overhauling the court following the confirmations of three justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — during President Donald Trump's tenure, giving conservatives a 6-3 majority. 

Some liberal activists have publicly called for Justice Stephen Breyer, 82, to retire to give Biden an opening to fill a seat. That would give Biden an opportunity to deliver on another of his campaign promises: to nominate a Black woman to the Supreme Court. 

In a recent speech at Harvard Law School, Breyer spoke against changing the structure of the court and didn't address calls for him to retire. 

It's too early to say what the commission might be able to achieve, but by forming it and outlining its objectives, Biden has fulfilled his promise. We rate this Promise Kept.

Our Sources

White House, President Biden to Sign Executive Order Creating the Presidential Commission on the Supreme Court of the United States, April 9, 2021

Reason, Biden Releases Names of Members of His Supreme Court Commission, April 9, 2021

ScotusBlog Amy Howe, In Harvard speech, Breyer speaks out against "court packing" April 7, 2021

New York Times, Bien Creating Commission to Study Expanding the Supreme Court, April 9, 2021

The Hill, Pelosi says she won't bring bill to expand Supreme Court to the floor, April 15, 2021

House Judiciary Committee, Expand the Supreme Court: Reps. Nadler, Johnson, and Jones and Senator Markey Introduce Legislation to Restore Justice and Democracy to Judicial System, April 15, 2021

Brian Fallon, executive director of Demand Justice, Tweet, April 7, 2021

Email interview, Sara C. Benesh, political science associate professor, University of Wisconsin - Milwaukee, April 9, 2021

Email interview, Norm Ornstein, American Enterprise Institute emeritus scholar, April 9, 2021

Email interview, Ilya Shapiro, vice president at the CATO Institute, April 9, 2021

Email interview, Thomas Moylan Keck, Syracuse University political science professor. April 14, 2021

Email interview, Jamal Greene, Columbia Law School professor, April 12, 2021


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