Biden establishes commission to study expanding Supreme Court

President Biden signed an executive order Friday establishing a commission to study whether to add seats to the Supreme Court and other reform proposals, the White House announced, fulfilling a promise he made on the campaign trail.

The commission will be chaired by former White House counsel Bob Bauer and Cristina Rodríguez, a Yale law school professor and former deputy assistant attorney general, and largely consists of academics and former officials from across the political spectrum. 

It will delve into the issue of potentially expanding the court — an idea that has been floated by some progressives but heavily criticized by Republicans — and which Biden himself has been cool to, though without explicitly ruling out the option.

“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 release. “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.”

The White House said that the commission will hold public meetings to hear arguments from experts and interested parties. It will be required to complete a report on its work within 180 days of its first public meeting. 

The commission will be composed of 36 members, including constitutional scholars and academics like Harvard law professor Laurence Tribe and New York University professor Richard Pildes. 

The group includes a number of prominent conservatives, including Jack Balkin, a constitutional law professor at Yale; Thomas Griffith, a former federal judge appointed by President George W. Bush; and Jack Goldsmith, a Harvard law school professor who served in legal positions at the Justice Department and Defense Department under the Bush administration. 

Other members include Sherrilyn Ifill, the president and director-counsel of the NAACP Legal Defense and Educational Fund; Michael Waldman, president of NYU’s Brennan Center for Justice; and Walter Dellinger, a former assistant attorney general and acting solicitor general with a lengthy legal resume. 

Biden in October said he was “not a fan” of the so-called court-packing option, a proposal to expand the number of seats on the court as a way to dilute the influence of conservative majority. Six of the nine justices on the court are now conservative jurists.

While less-than-definitive, the statement was his clearest position on an issue Biden largely sought to avoid discussing. Debate over Supreme Court reform flared up after the death of Justice Ruth Bader Ginsburg, as Republicans raced to fill the liberal justice’s vacancy with then-President Trump’s nominee Amy Coney Barrett shortly before the November election. 

Biden said during a “60 Minutes” interview last October that his administration would study potential Supreme Court reform beyond just adding seats to the court. 

“It’s not about court packing,” Biden said during the interview. “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.”

Roughly a half-dozen ideas for reforming the court gained prominence following Ginsburg’s death last September.

One proposal would establish 18-year term limits for justices, with an option to continue serving on lower federal courts after their Supreme Court term expired. The idea of placing term limits on justices is seen as a less extreme approach to reform than some other ideas that have been floated in progressive circles and has garnered support from a number of constitutional scholars.

Other proposed measures include narrowing the court’s jurisdiction, requiring a supermajority for decisions on some legal matters of consequence and imposing rules to create more ideological balance in the court’s composition.