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Biden Announces Executive Order Creating Commission to Study Expanding Number of Supreme Court Justices


President Joe Biden announced on Friday that he is signing an executive order to formally create the Presidential Commission on the Supreme Court of the United States to study and debate the merits of reforming the high court for the first time in decades. The commission—composed of a bipartisan coalition of experts in constitutional law, history, and political science—will have 180 days to create a comprehensive report concerning hot-button issues such as the possibility of expanding the number of justices on the court and implementing term limits.

“The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the White House said in a press release Friday. “The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”

Biden first announced plans to form the blue-ribbon commission on the campaign trail in October following the death of liberal icon Justice Ruth Bader Ginsburg and the almost immediate nomination of Amy Coney Barrett to replace her on the court. Barrett’s confirmation drastically altered the ideological balance of the court, giving it a solid conservative majority. At the time, Biden had been on the receiving end of heavy criticism for evading answers concerning Supreme Court expansion plans long-favored by structural progressives.

“It’s not about court packing,” Biden said in October–using an oft-used term for the legal and constitutional process of adding additional seats to the nation’s high court. “There’s a number of other things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.”

The 36-member commission will be co-chaired by former White House Counsel under President Barack Obama, Bob Bauer, who currently serves as the Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, and Yale Law School Professor Cristina Rodriguez, who previously served as deputy assistant attorney general in the DOJ’s Office of Legal Counsel, also under Obama.

Other big names on the commission include Sherrilyn Ifill, the President and Director of the NAACP Legal Defense & Educational Fund, Duke University law professor Walter Dellinger, constitutional law professor at NYU School of Law Richard Pildes, Harvard Law professor emeritus Lawrence Tribe, and University of Chicago Law School professor William Baude.

Legal observers called the list “super impressive” but unlikely to endorse “radical change.” They suggested that is no accident.

Still, the formation of the commission is likely to be met with fierce opposition from conservatives; any plans to add additional seats would require approval from Congress.

Justice Stephen Breyer, the oldest justice on the court, warned in a speech earlier this week against expanding the number of justices, arguing it would erode public trust in the institution.

“I hope and expect that the court will retain its authority,” he said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

Progressives have called for Breyer to retire now that Democrats are in control of the presidency and the Senate. They do not want see a Republican president replace another liberal justice who refused to retire. Nor do they want to see a Republican-controlled Senate block a nominee, as was done in the case of Merrick Garland. In his aforementioned speech, however, Breyer did not address retirement.

[image via SAUL LOEB/AFP via Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.