Law & the Courts

Biden to Form Commission to Study Packing the Supreme Court

President Joe Biden announces executive actions on gun violence prevention in the Rose Garden at the White House in Washington, D.C., April 8, 2021. (Kevin Lamarque/Reuters)

President 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.”

Biden promised to form the bipartisan commission during the campaign in October as he repeatedly dodged questions regarding his stance on expanding the Supreme Court. At that time, progressives had thrust court-packing to the forefront of political debate with calls to add more justices to the nine-judge court after Republicans moved forward with Justice Amy Coney Barrett’s confirmation hearings just weeks before the November 3 election, creating a 6-3 conservative majority on the court.

When asked before the election if voters “deserve to know” his position on court-packing, Biden said, “No they don’t deserve- I’m not gonna play his game. He’d love… that to be the discussion instead of what he’s doing now,” referring to President Trump.

He said that he would clarify his stance on court-packing ahead of the election, contingent upon how Republicans “handle” Barrett’s confirmation process, though he never did.

In an interview with 60 Minutes in October, Biden instead suggested he would “put together a national commission of .. scholars, constitutional scholars, Democrats, Republicans, liberal conservative.” 

“And I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of whack, the way in which it’s being handled and it’s not about court-packing,” he said then.

The 36-member panel will be led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under the Obama administration.

However, as the commission is not set to issue specific guidance at the conclusion of its study, it remains to be seen if the panel will ultimately clarify Biden’s stance on the issue.

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

“I hope and expect that the court will retain its authority,” Breyer said. “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 perception, further eroding that trust.”

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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