In a move of potentially profound historic importance, President Biden on Friday set up a 36-member commission to study the U.S. Supreme Court’s past and its potential future. The key function assigned to the new body will be to discuss the pros and cons of changes now being discussed in public and academic debate – including perhaps the most controversial idea: expanding the Court’s membership beyond nine Justices.
Depending upon what the academics, historians, lawyers and other experts on the commission ultimately conclude, its work could turn into the most significant constitutional event for the Court since President Franklin Roosevelt’s famous “Court packing” plan failed more than eight decades ago.
While there is a spreading conversation in America about the Court’s role, the most discontent is coming from progressives, who have seen the Court grow decidedly more conservative, especially with the seating of three new Justices chosen by President Trump. That discontent is behind the idea that the Court should be expanded by perhaps six Justices. It is not at all surprising that this idea is gaining some strength when there is a Democrat in the White House, who presumably would gain the power to fill those new seats to offset the conservatives’ current control.
The new commission will not finish its report for about six months, which very likely will cause the issue to lose – at least temporarily — some of the momentum that has been building up since the Democrats regained control of the Presidency. President Biden has been somewhat skeptical about the launch of a major political confrontation with the Court, and it seems likely that creating the commission could have been motivated in part by a desire to take the issue off of center stage while his administration has many other priorities to pursue and does not need to stir up another fight with Republican officials.
Even so, when the commission finishes, its final report might well change the substance as well as the tone of the debate.
If that report were to come out strongly against any major structural change for the Court, that might well be enough to stifle the reform initiative. But if that report turns out to be bold or adventurous, endorsing significant structural alteration of the Court, that would no doubt get caught up in a new, intense fight in Congress because of the continuing animosity between the two major political parties over any major public question.
The Court has long enjoyed more favorable views among the public than the political branches or the political parties, according to polling data, but heavy and growing criticism of its solid conservative majority is putting that support to a test.
A significant new fight over its future could put the Court into the center of a constitutional fight in next year’s congressional election campaign, a battle that might well stretch on into the presidential election year, 2024. The Court itself might be drawn into that fight; already this week, Justice Stephen Breyer argued in a public lecture at Harvard against expanding its membership, saying that would cost the Court some of its stature and prestige.
It would not take a constitutional amendment to expand the size of the Court, if the political will to seek such change develops or grows. The number of Justices is set by law, not by the Constitution; that number has varied from time to time throughout history, but has remained at nine since 1869. In terms of judicial philosophy, the current nine are divided roughly 6-to-3 with the six conservatives undoubtedly in control when they vote together. It thus would require the addition of at least four new progressive Justices to swing its majority – assuming that none of the current nine departs from the Court anytime soon.
If the commission should recommend changes in the Court’s jurisdictional breadth, that, too, could be attempted by passage of a new law by Congress. But the Court itself almost certainly would aggressively resist, and might even raise constitutional doubts about tinkering with its independence. The one change that the Constitution appears to flatly ban would be to set up a rival court at the top level of the federal judiciary; Article III says specifically that federal judicial power is “vested in one supreme court.”
President Biden outlined his plan for a “Presidential Commission on the Supreme Court of the United States” in an executive order Friday. The list of experts he named to the commission includes some highly respected Court watchers of both conservative and progressive leanings.
He set three goals for the commission in the report that would be due 180 days after its first public meeting:
- Write a sweeping account of the “contemporary commentary and debate” about the Court in America’s constitutional system and the “functioning of the process” of selecting new Justices for the Court – a process that has become deeply contentious along political party lines.
- Gather a recounting of past points in history when its role and the selection of new Justices created a debate and produced “proposals for reform.”
- Make an analysis of the “principal arguments” now being debated for and against Supreme Court reform, adding critically that the commission is to make an “appraisal of the merits and legality of particular reform proposals.” This third point, clearly the most potent, could make the commission a strong power to veto proposals that it deemed to be a threat to the Court or to its role in the American constitutional order.
The order mandates that the new body seek out “public comment,” to assure that it bases its conclusions on “a broad spectrum of ideas.”
The wording of the President’s order did not exhibit any preferences of his administration, one way or the other, thus leaving the commission to range widely over the subject of its work. The commissioners will serve without salaries.
The President named two veterans of the former Obama-Biden Administration as co-chairs: Bob Bauer, President Obama’s White House counsel and now a law professor at New York University, and Cristina Rodriguez, who served in the top ranks of the Obama Justice Department and is now a law professor at Yale.