The 36-member commission will have six months to study potential changes to the high court like adding seats to the bench and imposing term limits for justices.
President Joe Biden announced Friday the creation of a bipartisan commission to study potential reforms to the Supreme Court, following through on a campaign promise amid pressure from progressives and reform activists to alter or expand the high court.
Through an executive order, Biden is establishing the Presidential Commission on the Supreme Court of the United States with 36 members who are legal experts, professors, retired federal judges and former law clerks. It will be co-chaired by Bob Bauer, former White House counsel to President Barack Obama, and Cristina Rodriguez, who previously served in the Justice Department and as a clerk to former Justice Sandra Day O’Connor.
Commissioners are tasked with holding public meetings to discuss reforms and completing a report on their findings within six months of the first meeting. The commission will then be dissolved 30 days after submitting its report to Biden.
“The commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform,” the White House statement reads. “This action is part of the administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access (to) the court system.”
The panel will examine various reforms and their legality, particularly ones that gained attention during the 2020 campaign like expanding the court beyond the nine justices, also referred to as “court packing.” Commissioners will also review the lifetime appointment and turnover of justices in addition to the high court’s case selection, rules and practices.
Aside from court expansion, some Democrats and court reform advocates have floated the idea of imposing term limits for justices or shifting them to other courts. Sen. Bernie Sanders of Vermont, who ran against Biden in the Democratic primary, had proposed “rotating” justices to lower federal courts as a way to change the makeup of the Supreme Court without resorting to court packing.
Biden has also previously said he’s “not a fan” of court expansion but during the campaign, appeared open to exploring other reforms especially in light of Amy Coney Barrett’s promotion to the high court.
Last October, Biden vowed to create a commission to study court reforms if elected. His pledge came as activists worried about the solidification of the high court’s conservative bloc with the vacancy created by the death of Justice Ruth Bader Ginsburg. About a week before the 2020 election, Republicans pushed through the confirmation of Barrett, despite previously blocking Democrats from filling a vacancy in 2016 because it was months out from the presidential race.
In addition to Barrett, former President Donald Trump named two others to the Supreme Court during his tenure. After blocking Obama nominee Merrick Garland, Republicans confirmed Neil Gorsuch in 2017 to fill the late Justice Antonin Scalia’s seat. The following year, the party confirmed Brett Kavanaugh, who faced sexual misconduct allegations, to replace former Justice Anthony Kennedy.
Some court reform activists gave muted praise for Biden’s new commission and mostly expressed concerns that the months-long timeline may ultimately end in no substantive changes. They reiterated their stance that adding seats to the court is the only real solution to rebalancing the court.
“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 Friday in a statement.
“The solution is already clear,” he added. “Adding seats is the only way to restore balance to the court, and Congress should get started right away.”
But Justice Stephen Breyer recently warned activists about the risks of adding justices and the politicization of the high court. The liberal justice is currently facing calls from some progressives to retire so Biden can follow through on his pledge to nominate the first Black woman to the Supreme Court.
“If the public sees judges as politicians in robes, its confidence in the courts – and in the rule of law itself – can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” Breyer said during Tuesday remarks at Harvard Law School.