Biden to Sign Executive Order Forming Commission to Explore Expansion of the Supreme Court
Do you support or oppose expanding the Supreme Court?
by Causes | 4.9.21
What’s the story?
- The White House announced that President Joe Biden will sign an executive order on Friday to form a commission that will analyze the merits and legality of proposals to expand or otherwise reform the Supreme Court.
- The 36-member “Presidential Commission on the Supreme Court of the United States” includes former federal judges, lawyers who’ve argued before the Court, in addition to reform advocates. The White House explained the commission’s purview in its press release:
“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 commission will hold public hearings that include other experts and groups with a variety of perspectives and is directed to complete its report within 180 days of its first public meeting. It will be chaired by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, who served as deputy assistant attorney general in the Office of Legal Counsel during the Obama administration.
- Biden’s position on expanding the Supreme Court has evolved over the course of his political career. While he was the lead Democrat on the Senate Judiciary Committee, Biden said court packing was a “bonehead idea” that would undermine the Court’s integrity.
- After launching his presidential campaign in 2019, Biden said Democrats would “rue the day” they pursue it. Over the course of his campaign, Biden began to dodge questions on the issue and tried to avoid answering the question prior to the election. Less than two weeks before the election, Biden relented and committed to forming a commission on the issue to placate Democrats who were calling for the Court to be expanded and packed with liberal justices who could overwhelm the Court’s current 6-3 conservative majority.
- Two of the most prominent Supreme Court justices who are considered to be liberals to serve in recent memory have expressed opposition to expanding the Court beyond nine justices for the purposes of packing it with justices to suit the political desire of the party in power.
- Prior to her death, the late Justice Ruth Bader Ginsburg told NPR that “nine seems to be a good number” of justices and “it was a bad idea when President Franklin Roosevelt tried to pack the court.” Ginsburg added:
“If anything would make the Court look partisan, it would be that ― one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
- This Tuesday, Justice Stephen Breyer spoke for two hours at Harvard Law School to warn against court packing efforts and said he hoped to “make those whose instincts may favor important structural change or other similar institutional change, such as forms of ‘court-packing,’ think long and hard before they embody those changes in law.” Breyer said:
“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 other branches…
I hope and expect that the Court will retain its authority. 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.”
- Liberal groups advocating for court packing are also urging Breyer, who will turn 83 this August, to retire from the Supreme Court. A group called Demand Justice commissioned a billboard truck to circle the Supreme Court which has the following messages:
“Breyer, retire. It’s for a Black woman Supreme Court justice. There’s no time to waste.”
“Breyer, retire. Don’t risk your legacy.”
— Eric Revell
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