Biden orders study of Supreme Court Changes

A new commission will study potential measures including expanding the number of judges.

Joe Biden leaves the Holy Trinity Catholic Church in Washington. Picture: AFP

US President Joe Biden ordered a commission to study Supreme Court changes such as adding seats, an idea pushed by progressives in his party that faces strong opposition from congressional Republicans.

Mr Biden said during his campaign that he would create a bipartisan commission to study expanding the court or creating term limits for judges. Republicans have criticised what they say are proposals to “pack” the court by adding members, with the court holding a conservative 6-3 majority following Donald Trump’s presidency.

The 36-member commission will be charged with completing its findings within 180 days of its first public meeting and will preside over a fraught political moment for the future of the nation’s high court. The announcement came days after Stephen Breyer, the court’s oldest judge and most liberal member, warned that efforts to restructure the court could undermine its reputation as an apolitical body.

Advocates for expanding the court say that the conservative majority is out of sync with both public views and mainstream legal thinking and that increasing the number of judges would correct that. Critics say such moves would further politicise an institution that strives to define itself as separate from partisan agendas.

The White House said that Bob Bauer, a former White House counsel and top Biden campaign adviser, would co-chair the commission along with Yale law professor Cristina Rodriguez, a former Justice Department official in the Office of Legal Counsel.

The commission includes some of America’s best-known legal scholars, former federal judges and appellate lawyers who have argued before the court, along with leaders of advocacy groups.

Some of the members include Harvard law professors Laurence Tribe, a prominent liberal scholar who clerked at the Supreme Court for Potter Stewart, and Jack Goldsmith, a conservative who served in the George W. Bush Justice Department and clerked for judge Anthony Kennedy.

Other well-known members are retired judge Thomas Griffith, who was appointed by Mr Bush to the U.S. Court of Appeals for the District of Columbia Circuit, and Walter Dellinger, former acting solicitor general in the Clinton administration.

The White House said topics before the commission will 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.”

Democrats remain angry that Republicans, then controlling the Senate, refused after judge Antonin Scalia’s February 2016 death to consider President Barack Obama’s nominee for the Supreme Court, now-Attorney-General Merrick Garland. GOP leaders said then that a vacancy arising in an election year should be filled by the next president.

When, following Ruth Bader Ginsburg’s death in September, Senate Republicans confirmed Amy Coney Barrett a month before November’s presidential election, Democrats said they would consider significant actions if voters handed them the majority.

Mr Biden during his 2020 campaign resisted calls from within the Democratic Party to push for an expansion of the Supreme Court. He instead announced plans in October to form the commission if elected, saying the court system was “getting out of whack”. At the time, Mr Trump and Republicans accused Mr. Biden of preparing to pack the courts if he won the presidency and criticised him for declining to outline his stance on overhauling the courts. His proposal also received a tepid response from some liberal organisations that wanted him to expand the court if elected.

Congressional power over the Supreme Court is limited, but there is no dispute it can decide how many judges will serve on it. When it first met in 1790, the court had six judges; congress adjusted the number several times, most recently in 1869.

A Supreme Court that repeatedly stymied New Deal initiatives in the 1930s led Franklin Delano Roosevelt to propose legislation that would add one judge for each member over the age of 70, which would have provided him a majority on the court.

That proposal was widely criticised even by fellow Democrats and failed in congress, but the court switched its approach after Roosevelt’s agitation and began to recognise broader federal authority to regulate the national economy.

Chief Justice John Roberts, who has strived through his tenure to reduce the court’s political profile, often has spoken of his admiration for chief justice Charles Evans Hughes, who worked to defeat FDR’s plan to increase the court’s size.

The Wall Street Journal