President Joe Biden issued an executive order over the weekend that creates a commission to study potential reforms for the Supreme Court, including expanding the size of the court and instituting term limits for sitting justices.
The formation of such a commission would fulfill a presidential campaign pledge Biden made in October, when debate about the Supreme Court hit a fever pitch during the confirmation for Justice Amy Coney Barrett, who replaced the late Justice Ruth Bader Ginsburg.
Although President Biden promised to create such a commission, he’s indicated that he would not press forward with reforming the Court without bipartisan agreement.
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” he said in October.
Republicans are viewing the commission as a power play by Democrats, while progressives note that the commission — which will not provide the president with any recommendations in its final conclusion — won’t move reform forward.
“This White House judicial reform commission has a historic opportunity to both explain the gravity of the threat and to help contain it,” said Aaron Belkin, director of Take Back the Court, a group promoting the expansion of the Supreme Court’s size. “But we don’t have time to spend six months studying the issue — especially without a promise of real conclusions at the end.”
The commission itself will have 36 members in total, and will be charged with forming “an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform,” according to the text of Biden’s executive order.
“Members of the Commission shall be distinguished constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States,” the order said.
Biden appears to be taking a bipartisan approach to the commission, as it includes progressives like NAACP Legal Defense and Educational Fund Director Sherrilyn Ifill and Harvard law professor Laurence Tribe, but also conservatives such as Harvard Law School’s Jack Goldsmith, who served in the administration of former President George W. Bush, and University of Virginia law professor Caleb Nelson, who clerked for the far right Justice Clarence Thomas.
The commission’s co-chairs will include Bob Bauer, former White House counsel to former President Barack Obama and a current professor at New York University, as well as Cristina Rodriguez, a current Yale Law School professor and a former law clerk to Justice Sandra Day O’Connor.
The Supreme Court’s size is not enshrined in the U.S. Constitution — changing the number of justices would require a simple act from Congress. Progressives began pushing the idea of expanding the court’s size after Republicans in the Senate, led by Sen. Mitch McConnell (R-Kentucky), inconsistently blocked and confirmed justices in a partisan manner.
In 2016 following the passing of Justice Antonin Scalia, Obama nominated then-Judge Merrick Garland (who now serves as attorney general) as a replacement. McConnell and Republicans refused to allow a floor vote or even hold hearings on the nomination, citing the close proximity to the 2016 presidential race. After former President Donald Trump won that election, Republicans confirmed Justice Neil Gorsuch to the Supreme Court instead.
Yet in the fall of 2020 when Justice Ginsburg died, Republicans seized upon the opportunity to replace the liberal stalwart of the court with the conservative Barrett, just weeks before the 2020 election.
The hypocrisy prompted progressives like Rep. Alexandria Ocasio-Cortez (D-New York) to call for growing the court’s size.
“Expand the court,” Ocasio-Cortez wrote on Twitter after Barrett’s confirmation, adding that it was time for Democrats to “play hardball” like Republicans do.
Voters in the U.S. were divided at that time on taking such action. A poll from The Hill-HarrisX conducted in October 2020 found that 52 percent of voters generally favored expanding the Supreme Court, while 48 percent of Americans were opposed.