GOP Lawmakers Renew Push to Block Supreme Court Packing

April 14, 2021 Updated: April 14, 2021

A group of Republican lawmakers has renewed efforts to prevent Democratic lawmakers from expanding the Supreme Court after a commission was created by President Joe Biden to study possible reforms to the nation’s top court.

Rep. Mike Gallagher (R-Wis.), who is leading the effort, proposed a constitutional amendment on April 13 that would limit the number of Supreme Court justices to nine. Similar proposals were introduced last year by other Republican lawmakers.

“We don’t need a commission to know court-packing is a radical idea that would undermine confidence in one of our country’s most important—and trusted—institutions,” Gallagher said in a statement.

“The Supreme Court has been comprised of nine justices for more than 150 years, and it’s time we amend the Constitution to make this longstanding precedent permanent before it’s too late.”

Biden’s order creates a bipartisan commission that would spearhead debate on Supreme Court reform. The panel will consist of former federal judges and lawyers who have argued in front of the Supreme Court, as well as “advocates for the reform of democratic institutions and of the administration of justice,” the White House stated. “The expertise represented on the commission includes constitutional law, history, and political science.”

The panel created by Biden will be led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Yale Law School professor Cristina Rodriguez, who served as deputy assistant attorney general in the Office of Legal Counsel in the Obama administration.

The president first floated the idea of a presidential commission last fall while on the campaign trail, following calls by liberal groups to expand the high court after the death of Justice Ruth Bader Ginsburg. Biden presented the idea of the commission as an alternative to “court-packing” efforts.

Court-packing had previously been attempted and was proven to be unpopular. In 1937, President Franklin D. Roosevelt proposed legislation to expand the size of the Supreme Court to a maximum of 15 justices. Roosevelt’s motive was to shift the ideological balance of the court so that it would stop striking down his New Deal programs.

While the Supreme Court and the federal judiciary are set up by the Constitution, it also gives Congress the authority to pass laws to set up the judicial branch, including how many justices are on the top court.

The Constitution states, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The bar to amend the Constitution is very high as it requires two-thirds of the House and Senate to approve the text of the amendment and then three-quarters of the states to ratify the amendment. Given the current division in the country, such an effort is unlikely to succeed.

Supreme Court Justice Stephen Breyer addressed the issue of court-packing in a speech to Harvard University students and alumni last week, when he warned against the effort.

“To make those whose initial instincts may favor important structural change, or other similar institutional changes, such as forms of court-packing, think long and hard before they embody those changes in law,” Breyer said.

“If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law can only diminish, diminishing the court’s power, including its power to act as a check on other branches.

“My experience of more than 30 years … as a judge has shown me that once men and women take the judicial oath they take that oath to heart. They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

Jack Phillips contributed to this report.

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