A 36-member commission the White House established to study the US Supreme Court will not make final recommendations for reform, according to details released Friday, a possible letdown for liberals hoping for President Joe Biden to push for more justices on the bench.
The long-awaited commission announcement developed from a pledge Biden made as a candidate last October, as liberals were calling for additional seats to be added to America’s high court, to try to bring greater balance to a bench dominated 6-3 by conservatives poised to continue its right turn on abortion rights, religious liberty and voting restrictions.
“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 announcement said, adding that commissioners would examine such options as term limits for justices; changing the size of the court; and altering its case selection, rules and practices.
Last year when Biden offered the commission idea (which then included a plan for recommendations), some progressives derided the idea. The new, open-ended agenda may prove another disappointment.
“This White House judicial reform commission has a historic opportunity to both explain the gravity of the threat and to help contain it. But we don’t have time to spend six months studying the issue — especially without a promise of real conclusions at the end,” Aaron Belkin, director of Take Back the Court said in a statement Friday. “The solution is already clear. Adding seats is the only way to restore balance to the Court, and Congress should get started right away.”
Biden proposed the commission in October 2020 as he was being pressured by fellow Democrats to take a stand on court expansion, or what some critics dub as “court packing,” akin to President Franklin D. Roosevelt’s (failed) attempt of the 1930s. Biden offered the commission as an alternative, resisting any idea to add more seats to the Supreme Court but asserting the court system was “out of whack.”
The commission is led by Bob Bauer, a former White House counsel to President Barack Obama and currently New York University law professor, and Yale Law professor Cristina Rodriguez, who once served as a law clerk to former Justice Sandra Day O’Connor.
The panel includes two former federal judges (Thomas Griffith of the DC Circuit appeals court and Nancy Gertner, of a Massachusetts US district court) and advocates and academics of a range of ideologies and backgrounds.
Among them are liberal advocates and prominent law professors affiliated with the left and right: NAACP legal defense fund director Sherrilyn Ifill, the Brennan Center for Justice president Michael Waldman, Harvard law professor Laurence Tribe, a liberal stalwart, and Harvard Law Professor Jack Goldsmith, formerly of the George W. Bush administration.
Several commission members once worked at the Supreme Court as law clerks, including Walter Dellinger, who served Justice Hugo Black in the late 1960s and became an acting US solicitor general in the Bill Clinton administration; Columbia law professor Olatunde Johnson, who worked for Justice John Paul Stevens, and University of Virginia law professor Caleb Nelson, who clerked for Justice Clarence Thomas, both in the 1990s, and, in more recent service, University of Chicago law professor William Baude, who clerked for Chief Justice John Roberts.
The commission is expected to begin holding public hearings in upcoming weeks and report back to the President in six months, after sizing up options.
Many progressives chalk up the high court’s imbalance to Republican Sen. Mitch McConnell’s months long stalling of former President Barack Obama’s candidate for the court in 2016 and then swift October 2020 appointment of former President Donald Trump’s third appointee, Amy Coney Barrett for Ruth Bader Ginsburg.
Those involved with the commission said they want to offer an authoritative assessment of the situation rather than a document that advocates various ideas. That would offer Biden a picture of the historical factors as well as contemporary perspectives before he made any proposal.
When Biden first disclosed his commission idea, he said in a CBS interview that he wanted “recommendations as to how to reform the court system because it’s getting out of whack.”
Biden's First 100 Days
“It’s not about court-packing,” he 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.”
Many progressive voices have since touted proposals for expanding the number of Supreme Court seats, including the Take Back the Court and Demand Justice groups.
But Justice Stephen Breyer on Tuesday warned against such expansion proposals, saying they could undermine public trust. “Those whose initial instincts may favor important structural … changes, such as … ‘court-packing,’” he said, should “think long and hard before embodying those changes in law.”
Breyer is not alone on the high court in resisting the court expansion idea. It is up to Congress to set the number of seats. Nine has been the number since 1869. Before then, there was more variation, from a low of five seats to high of ten.
Any change in the justices’ current life tenure would likely require a constitutional amendment. However, some term-limit proponents suggest that life-tenure as set out in the Constitution could be met 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.