Under pressure from his party’s base to pack the high court with additional justices, President Joe Biden is following through on his campaign promise to create a commission to examine possible reforms to the Supreme Court and the federal judiciary.
President Franklin D. Roosevelt, a Democrat, tried to pack the Supreme Court in the 1930s after it struck down a series of his legislative initiatives as unconstitutional, but lawmakers from his own party viewed the move as a political bridge too far when the public expressed its disapproval of court-packing. While court-packing legislation died, the justices later dropped much of their opposition to Roosevelt’s government-enlarging New Deal legislation and upheld the various laws’ constitutionality.
News that planning for the commission is underway comes after Sen. Shelley Moore Capito (R-W.Va.) introduced legislation Jan. 22 to amend the U.S. Constitution to limit the Supreme Court to nine justices, the numerical cap that has been in place for well over a century, in order to prevent Democrats from enlarging the court’s membership.
In October 2020, Biden, who has so far refused to commit to expanding the number of Supreme Court justices, referred to the federal judicial system as “out of whack” on the CBS program “60 Minutes,” as the U.S. Senate moved forward with the nomination of Supreme Court Justice Amy Coney Barrett. Barrett, a conservative constitutionalist who was confirmed shortly before Election Day, replaced the liberal Ruth Bader Ginsburg, who died in September.
Democrats accused Republicans of a double-standard for moving expeditiously on Barrett’s nomination and vowed to pack the Supreme Court with additional justices in order to dilute the power of the court’s conservative-majority bloc, a move they argued would make it easier for big-government legislation favored by the political left to survive court scrutiny.
Then-President Donald Trump’s move to fill the seat quickly in an election year enraged many Democrats, given the precedent of Merrick Garland. Following the election-year death in 2016 of Justice Antonin Scalia, the then-Republican-majority Senate refused to take up then-President Barack Obama’s nomination of Garland to the Supreme Court. He has since been nominated by Biden to be attorney general.
Biden said in the fall he would create a bipartisan commission that would include Democrats, Republicans, liberals, and conservatives to review the judiciary.
“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it is getting out of whack, the way in which it’s being handled, and it’s not about court-packing,” he said at the time.
“There’s a number of alternatives that … go well beyond packing,” Biden said.
The commission’s specific mandate has yet to be agreed upon, but some commission members have already been chosen to serve, Politico reports, citing unnamed sources.
According to the media outlet, the commission will operate under the auspices of the White House Counsel’s office. It will be staffed with the assistance of Biden campaign lawyer Bob Bauer, who will become one of its co-chairs. Another co-chair will be Cristina Rodriguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama administration.
Other appointees reportedly include Caroline Fredrickson, a former president of the left-leaning American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and former assistant attorney general in George W. Bush’s administration.
Frederickson supports court-packing. In 2019, she said, “I often point out to people who aren’t lawyers that the Supreme Court is not defined as ‘nine-person body’ in the Constitution, and it has changed size many times.”
Curt Levey, president of the Committee for Justice, told The Epoch Times the jury is still out on what Biden’s move to create the commission means.
“There are two possibilities,” Levey said in an interview.
“One is that he really does support court-packing and this is just his way of seeming reasonable and it’s just a cover for eventually supporting court-packing.
“The other possibility is that he really doesn’t want to give in to the base on this and this is just a way to get the base off his back, and I honestly do not know which is the case here.”