Biden’s Commission Studying Supreme Court Reform Weighs Benefits & Risks of Adding Justices

What’s the story?

• A commission created by President Joe Biden to study potential changes to the Supreme Court released discussion materials on Thursday and held a public hearing Friday. It’s expected to prepare a report for the president by mid-November. Biden formed the commission by executive order earlier this year, fulfilling a campaign pledge made during his presidential campaign amid calls by Democrats to add four new justices to the bench and tip the ideological balance of the nation’s highest court.
• The discussion materials covered the commission’s role in the reform debate; membership and size of the Supreme Court; term limits; the Court’s role in the constitutional system; and the Court’s process for selecting and reviewing cases.
• Commissioners noted that Congress has changed the size of the Court several times from 1789 to 1869 and clearly has the authority to do so, but that the more difficult question is whether it should be expanded. While expansion could improve public perception of the Court’s legitimacy or boost its efficiency, the commissioners wrote that “the risks of Court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the Court’s legitimacy.”
• It’s unclear how much the commission’s work will influence Biden’s position on expanding the Supreme Court, which has evolved over the course of his political career. When he was the top Democrat on the Senate Judiciary Committee, Biden said court-packing was a “bonehead idea” and “terrible, terrible mistake” that would undermine the Court’s integrity.
• After launching his presidential campaign in 2019, Biden said Democrats would “rue the day” they pursue court-packing. 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 in recent memory who are considered to be liberals in their jurisprudence have expressed opposition to expanding the Court beyond nine justices for the purpose 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.’”

• Earlier this year,  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.”

• The size of the Court has ranged between five and 10 justices, and the number of justices changed six times before it settled at nine justices in 1869. During the Civil War, the Republican Congress expanded the Court to 10 to let Abraham Lincoln make more appointments, but after the war reduced it to eight to prevent Andrew Johnson from making appointments. The number of justices was then restored to nine justices in 1869 after Ulysses Grant took office. Since then, the most serious challenge to the nine-justice Supreme Court came from FDR’s failed court-packing plan in the late 1930s.
• In the current Congress, House Democrats have introduced legislation to add four more justices to the Supreme Court as part of an effort to alter the balance of the nation’s highest court in favor of liberals. However, legislation to change the size of the Supreme Court would be subject to the Senate’s 60 vote threshold (aka the legislative filibuster), which Democrats wouldn’t be able to secure. Additionally, Democrats lack the 50 votes they would need to use the “nuclear option” to abolish the filibuster.

— Eric Revell

(Photo Credit: VoxLive via Flickr / Creative Commons)