What Will Come From Biden's Supreme Court Commission?

The makeup of the United States Supreme Court - and the politics surrounding it - were irrevocably altered by the death of Justice Ruth Bader Ginsburg in September 2020. As expected, the Justice's death kicked off more political noise surrounding her replacement, which ultimately turned out to be Amy Comey Barrett, an arch-conservative. Then-candidate Joe Biden was asked about how he would handle Supreme Court reforms, and Biden tried to split the difference, saying he favored appointing a blue-ribbon commission to enact certain reforms. What will come of that, however, remains to be seen.

The Commission Itself

President Biden is expected to announce the members of this Commission at some point in February. He announced his support of a Commission in the aftermath of the death of Justice Ginsburg and after the appointment of Justice Comey Barrett, saying that it would be a good way of building bipartisan consensus and expert opinion in order to make needed reforms to the Court.

There is no question that President Biden has numerous issues that need to be addressed, and that politics are involved in this decision. Democrats and liberals are increasingly vocal about the need to change the court system and remain extremely bitter about the blocking of Merrick Garland's appointment to the Court. Conservative Justices now control the U.S. Supreme Court by a 6-3 margin, allowing them unfettered judicial power to change the laws of the United States. However, the political realities of the moment - including a 50-50 Democratic-led Senate - make major changes to the Supreme Court extremely difficult to fathom.

While additional members of the Commission have yet to be announced, its co-chairs are known. They will be Bob Bauer, former White House attorney under President Obama, and Cristina Rodriguez, a former clerk to Justice Sandra Day O'Conner and current professor at Yale. 

Items to be Addressed

Perhaps no issue has become more important than addressing the idea of adding more Supreme Court Justices, otherwise known as "court packing." The Court currently sits at nine Justices. However, it hasn't always, and its size has gradually increased over time. Of course, court packing has also been used as a weapon against the Court. President Roosevelt attempted to add more Justices in the 1930s, when his New Deal initiatives were repeatedly struck down. That ultimately failed, but the Court did begin to issue more favorable rulings.

Furthermore, adding Justices is one area that doesn't require an amendment to the Constitution. It only requires passing a law, just like any other. As such, it is theoretically obtainable. 

However, other issues are also on the table for this Commission. This includes the idea of lifetime appointments, depoliticizing the Court, ethics rules, and an expansion of the court system in general. This would involve adding more Justices to lower courts, something advocates have been pushing for decades. 

Of course, some of these issues are more controversial than others, and the party of the President no doubt will help or hinder the odds of the success of such a plan. 

Odds for Success

There is no question about it - the odds against structural changes to the United States Supreme Court are steep. Some Democratic Senators - like Joe Manchin (D-WV) - have repeatedly expressed their opposition to court packing, saying that they do not favor changing the makeup of the court in order to alter its ideological balance. This flies in the face of the perspective of the base of the Democratic party, which poll show want to see Biden try to expand the court and pack it with liberal judges. However, given the 50-50 Senate and opposition within his own party, the odds of that actually occurring are very steep. Other reforms - such as potentially enacting term-limits on the court - would require a 2/3 majority, as it would have to be amended into the United States Constitution. This makes the odds of this happening slim.

Altering the United States Supreme Court is difficult, to say the least. It is clear that President Biden is attempting to use this Commission to build a bipartisan consensus around the idea, and there is precedent for this maneuver. However, given the politics around the issue, the odds of it occurring are unquestionably slim. 

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