President Joe Biden will soon reveal the membership and agenda of a commission that would take the first modern-day look at reforming the Supreme Court, according to officials familiar with the commission.
The move comes as liberals are calling for additional seats to balance out the conservative-dominated bench that is increasingly going to the right on abortion, immigration, voting rights and religious freedom cases.
Biden first proposed a presidential commission as a candidate last October, partly as an alternative to immediate “court packing” demands from Democrats, as proposals for more seats on the nine-member bench are dubbed. Another idea that scholars have raised in recent years, and could be under consideration, is term limits for the justices, who currently enjoy life tenure.
Liberals pressing for dramatic change are trying to generate a sense of urgency by emphasizing just how different the high court is today. Trump appointments have accelerated the rightward tilt of judges across the county, and the Supreme Court is now controlled by the 6-3 conservative majority since the addition of Justice Amy Coney Barrett for the late Ruth Bader Ginsburg.
Democrats remain incensed that Senate Republicans blocked the 2016 Supreme Court nomination of US Appeals Court Judge Merrick Garland for nearly a year, but then moved swiftly to confirm President Donald Trump’s appointees, including Barrett just days before the November 2020 presidential election.
“Democrats feel that seats were stolen from them, and that now their priorities will be struck down by the court,” said University of Wisconsin law professor Joshua Braver, who has studied the history and consequences of “court packing.”
Officials involved with the Biden commission say its membership and mission are being finalized and could be unveiled as early as next week.
The co-chairs will be Bob Bauer, a former White House counsel to President Barack Obama and currently a New York University law professor, and Cristina Rodriguez, a Yale law professor who early in her career was a law clerk to former Supreme Court Justice Sandra Day O’Connor.
The full membership slate is not yet known, but it appears Biden, a Democrat, may fulfill his vow to appoint both Democrats and Republicans, liberals and conservatives. Many members are law professors who have written on Supreme Court history, structure or reform.
Bauer and Rodriguez declined to comment.
Some of the commission’s work would be conducted in public, under the usual rules for federal advisory panels, according to a person familiar with the set-up. Its report, with a six-month deadline, would likely be a starting point for executive-endorsed proposals, rather than a final recommendation for transforming the bench.
When Biden first revealed the commission plan, in a CBS interview last fall, he said he wanted “recommendations as to how to reform the court system because it’s getting out of whack.”
“It’s not about court-packing,” Biden said, responding to a question about the topic. “There’s a number of other things that our constitutional scholars have debated. … 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. Presidents come and go. Supreme Court justices stay for generations.”
Justices are resistant to change
Justices have historically bristled at loose proposals for the addition of seats or term limits. Congress sets the number of seats on the court, and any modification to life-tenure could arguably require a constitutional amendment. Some term-limit proponents suggest that life-tenure would be lifted if a justice were not stripped of his or her appointment after, for example, 18 years, but rather limited in what cases he or she could hear.
The nine are known for their resistance to change. The court does not permit cameras in its courtroom and is not formally covered by a federal ethics code.
Bauer, who previously co-chaired a bipartisan commission on election administration, has argued for a deeper discussion of Supreme Court reform, including term limits, supermajority voting requirements and ethics codes.
He opposed adding more seats to the Supreme Court in a 2018 Atlantic magazine piece headlined, “Don’t Pack the Courts.” He said the move “would sap the Supreme Court of its legitimacy.”
Several liberal advocacy groups have joined together to promote four court-related priorities: the addition of Supreme Court seats; expansion of lower courts; term limits on justices; and new ethics rules for the high court.
Polls have shown Democrats more inclined than Republicans to support enlarging the high court. A Marquette Law School poll conducted in early September, for example, found 46% of adults in favor of increasing the number of justices on the US Supreme Court, with 53% opposed. Among Democrats, 61% favored expansion vs. 34% of Republicans.
“Incrementalism isn’t going to fly this time,” Brett Edkins, political director of Stand Up America, said Friday. “The scale of the problem is huge. The Democrats have a narrow window of opportunity to repair it.”
History of ‘court packing’
With the result of the Georgia US Senate election earlier this month, both chambers of Congress are now controlled by Democrats. But the Democratic majority is slim, and there currently is no obvious appetite to add more seats to a bench whose numbers have not been changed since 1869.
In earlier American history, there was more variation in the number of seats on the court, from a low of five to a high of 10. Politics often drove action to expand or contract the number of seats, although Congress would cloak its proposals in neutral justifications, for example, tied to caseload, as University of Alabama law professor Tara Leigh Grove has written.
In a dramatic 1930s “court packing” attempt, President Franklin Delano Roosevelt asked Congress to add more justices to a bench that was invalidating his New Deal economic initiatives. FDR proposed a new justice for every sitting justice older than 70; six of the nine were then over 70. His plan failed.
Roosevelt was targeting older conservative justices. Today, conservative justices are the relatively young ones. Barrett is 49, Neil Gorsuch is 53, and Brett Kavanaugh, 55. They are the three youngest justices. Stephen Breyer is the eldest, 82. Chief Justice John Roberts is 66.
Braver, the University of Wisconsin professor, said that adding new seats carries significant dangers.
“Court packing is a nuclear option. It would continue the political escalation and add new dangers,” he said. “It’s not hard to imagine people in the future thinking they can defy the court’s rulings,” because of shifts in the number of seats.
He said a drawn-out study process may give the commission and the court time to observe each other.
“It’s kind of a sword of Damocles hanging over this court,” Braver added on Friday. “The commission may or may not be pushed to certain positions based on how aggressive the court’s rulings are in the meantime.”