Biden creates commission to study packing the Supreme Court

AP Photo/Cliff Owen

President Biden signed an executive order today which sets up a new commission to study changes to the Supreme Court, including the possibility of expanding/packing it. The full order is posted on the White House website. It creates a commission of 36 members all of whom are considered experts in the legal field. The group will have up to 180 days to submit a report which looks at specific reform proposals and which will include public comment. The full list of members is here. Most of them aren’t household names but a few, like Harvard’s Laurence Tribe, are familiar. There’s no need to guess where he stands on court packing:

A couple of liberal Harvard law professors are lending their name to a new campaign to build support for expanding the Supreme Court by four justices in 2021…

“The time is overdue for a seriously considered plan of action by those of us who believe that McConnell Republicans, abetted by and abetting the Trump Movement, have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us,” Tribe said.

The report itself won’t include recommendations, just analysis of the issues. The Post says progressives are probably going to be in for some disappointment:

The commission, however, is likely to disappoint liberals who are looking for quick action to blunt the court’s conservative majority, while giving the president cover to avoid wading into the contentious debate. The members are not tasked with giving Biden specific recommendations but rather providing an analysis of a range of proposed changes to the court.

And the NY Times echoes that suspicion:

Activists who say a larger court would give Mr. Biden the chance to appoint a number of liberal justices may be disappointed by his commission. People familiar with its charge from the president said the group will avoid making any recommendations to Mr. Biden or lawmakers…

The commission’s members include liberal scholars like Laurence H. Tribe, a professor emeritus at Harvard Law School and a leading progressive voice in the legal community, and Caroline Fredrickson, the former president of the American Constitution Society.

But progressives may balk at some of the conservative members of the commission. They include: Jack Goldsmith, a Harvard Law School professor who was a top Justice Department official under President George W. Bush; Adam White, a resident scholar at the American Enterprise Institute and a professor at George Mason University’s Antonin Scalia Law School; and Keith E. Whittington, a professor of politics at Princeton University who takes an “originalist” view of the Constitution.

In short, the commission has enough balance that we’re not likely to see it go all in on something as extreme as court packing. That’s probably because Biden himself doesn’t think it’s a good idea. Back in 2019 Biden said he was against court packing but during the campaign last year he tried to avoid irritating his base by repeating that he was against it. Instead, he simply refused to answer the question and eventually promised to create a commission to study the issue. Here’s a collection of clips put together by the Washington Post.

One of the other things the commission will look at is the possibility of term limits for SCOTUS justices. I’ve seen some people talking about limiting them to 18-year terms and others suggest the justices rotate such that every president gets 1 or 2 nominations. My guess is that in six months when the report is turned in we’ll hear a lot more about those ideas, if nothing else because it’ll be a way for the White House to take the focus off court packing.

Justice Breyer warned recently, during an address at Harvard, that court packing was a bad idea. That didn’t go over well with the far left who are now increasing their calls for him to resign. I don’t know why Breyer would retire now rather than in a year or two, but he is 82-years-old and is not going to take the risk that Justice Ginsburg did. He doesn’t want to wake up one morning and realize he’s stuck with having President DeSantis choose his replacement.