For many liberals, the state of the nation’s courts system has reached a crisis point. For President Donald Trump and Senator Mitch McConnell, reshaping the judiciary branch was a top priority throughout Trump’s term — and they largely succeeded.
The coup de grâce came last September, when Justice Ruth Bader Ginsburg died and Trump replaced her, just days before the general election, with the staunchly conservative Amy Coney Barrett. It was the third appointment of Trump’s four-year term, and it cemented a conservative majority, now 6 to 3, on the court.
But today, President Biden issued an executive order establishing a commission to study the status of the Supreme Court, with an eye toward making serious changes, including perhaps expanding the number of justices.
The idea of increasing the Supreme Court’s membership — and then “packing” it with more ideologically favorable justices — became a major theme on the campaign trail last year, for the first time in recent memory. A number of candidates, including Kamala Harris, now the vice president, and Pete Buttigieg, now the secretary of transportation, said at the time that they would be open to increasing the number of justices. Biden did not express support for the idea, though he was careful not to rule it out.
Instead, he promised to set up a commission to study possible changes to the court — a pledge that he delivered on today. The executive order states that the commission will undertake a 180-day study, culminating in a report to the president; the group is made up of “constitutional scholars, retired members of the federal judiciary” and others with “knowledge of the federal judiciary and the Supreme Court.”
The order mentions a number of possible steps that the commission will consider and analyze, including expanding the size of the court and establishing term limits.
Both of those proposals have been put forward by progressives as potential means of guaranteeing greater ideological balance on the court. Shortly after Ginsburg’s death, Representative Ro Khanna of California, one of the left-most members of Congress, introduced the Supreme Court Term Limits and Regular Appointments Act, which would ensure that all presidents have an opportunity to appoint justices. Dozens of legal scholars signed a letter endorsing the proposal, though it did not progress to a committee vote.
Some of those who signed on to that letter have been named to the 36-person commission; its membership tilts leftward, but also includes conservative scholars affiliated with groups such as the Federalist Society and the American Enterprise Institute.
The chairs of the commission will be Bob Bauer, who was White House counsel under President Barack Obama, and Cristina Rodríguez, a Yale Law School professor who was Obama’s deputy assistant attorney general in the Office of Legal Counsel.
“To ensure that the commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining,” the White House’s press office said in a statement today.
The court’s membership hasn’t been expanded since the 19th century, though some presidents have tried. Notably, Franklin Delano Roosevelt — whose New Deal legislation has been held up as a prototype for Biden’s swashbuckling expansion of the federal government’s role in American life — sought to pack the court in the 1930s with a law that would have allowed presidents to add a new justice for every member of the court over 70 years old. It was never passed.
The debate over expanding the court today has some resonances with the parallel discussions taking place over whether to nix the filibuster; both have drawn a line through the Democratic Party, forcing a choice between upholding procedural tradition and advancing progressive goals.
Justice Stephen Breyer, who at 82 is by far the oldest member of the court’s liberal wing, sought this week to put a damper on calls for wholesale reform. “Those whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of ‘court-packing,’” he said, should “think long and hard before embodying those changes in law,” according to the prepared text of a speech he gave by video on Tuesday at Harvard Law School, his alma mater.
Whatever his feelings about court-packing, liberal proponents of overhauling the court say there’s something Breyer can do immediately to help their cause: Pledge to step down at the end of the current term, and let Biden choose his successor. Starting today, the advocacy group Demand Justice will be driving a billboard truck around downtown Washington, including the blocks near the Supreme Court, bearing the message: “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.”
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