What Will Biden's Supreme Court Commission Do?

Monica Jackson
Published Nov 25, 2023

As he promised during his campaign, President Joe Biden has put together a so-called "blue-ribbon commission" to study the Supreme Court. The issue comes as America looks at fundamental changes to its three branches of government, and specifically, the Supreme Court. For the first time a long time, terms like "court-packing" have become widespread, with advocates arguing for and against putting more Justices on the Supreme Court.

The Role & Makeup of the Commission

On April 9, President Biden signed an Executive Order formally creating the "Presidential Commission on the Supreme Court of the United States." The group will be made of members of both parties, legal experts, law professors, and attorneys. Its stated goal will be to examine reform options for the Supreme Court. As noted in a White House press release on the order, the commission is set to tackle a number of highly salient and controversial proposals about the Court, including length of tenure, membership size, and jurisdiction. It is supposed to release a report in no more than six months.
The Commission will be co-chaired by two legal experts. The first, Bob Bauer, is a professor at New York University School of Law. The second is Cristina Rodriguez, a professor at Yale Law School and former attorney for the Department of Justice. Dozens of other attorneys and experts comprise the remainder of the Commission.

The Politics of the Commission

Any effort to reform the Supreme Court will be fraught with political overtones, and this is no exception. Indeed, the need for this Commission first arose as a direct result of the death of Justice Ruth Bader Ginsburg and appointment of Amy Comey-Barrett by former President Trump. Justice Comey-Barrett's appointment - as well as Senator Mitch McConnell's refusal to hold hearings for Merrick Garland - led to Democratic charges that McConnell and the Republicans had stolen the Supreme Court. As a result, many Democrats began to encourage Biden to "pack" the Supreme Court, in part, in order to make up for the seats they believed Republicans had stolen.
Progressive activists hope that the Commission will represent a first step towards reforming the court and expanding its membership. Indeed, a group of activists recently unveiled a bill that would expand the number of Supreme Court seats to 13. That bill has no chance of passing but does help to focus progressive energies on efforts to increase the size of the Court.
As expected, Senator Mitch McConnell attacked Biden's Commission, saying that he believed it was an attack on the independence of the judicial branch. He - and many other Republicans - view the Commission as a prelude to court-packing.

So...what happens next?

That much is unknown. If the Commission operates as it is supposed to, it will study evidence, hear testimony, debate issues, and ultimately issue a report that will contain a series of recommendations designed to improve the functioning of the Court.

It is worth noting that the issues which will be addressed in the report - including the size of the court, term limits, and jurisdiction - are all routinely examined by Congress. The original Supreme Court was not 9 justices, and it has been expanded repeatedly over time. Other changes have occurred to the method of appointment and the Court's jurisdiction. Indeed, one could very easily argue that this is part of a routine and necessary look at the way in which the Supreme Court and judicial system functions.

Of course, it is possible that Senator McConnell is at least partially correct, and that this Commission is merely operating as window dressing for expanding the court in order to better suit the ideological needs of the Democratic party. If that is the case, a politically charged fight is surely at hand. While Democrats control the House of Representatives and United States Senate by the slimmest of margins, it is very doubtful that any plan to expand the Supreme Court would pass Congress in its current makeup. Indeed, any effort - particularly one without compromise, which is difficult to imagine in these circumstances - would almost certainly trigger a full-scale political war.

A more likely scenario is that the Commission makes more modest recommendations to the Court, ones that will change the way it functions but likely not trigger the same level of political warfare. Either way - we'll have to wait and see.

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