President Biden announced on Friday that he would sign an executive order forming the 'Presidential Commission on the Supreme Court of the United States' to establish a 'bipartisan commission' to examine the expansion of the seats on the Supreme Court. The president's statement said the commission would scrutinize topics related to the origin of the Court's rule 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.
America's Supreme Court is so deeply rooted in tradition that since 1869, there have been nine Justices on the Supreme Court. Frequently referred to as "the first Court still sitting," the sacred institution has, throughout a wide array of changes in history, remained consistently loyal to the beliefs of the convening body that met in 1790.
A frequent subject on the campaign trail, "court-packing," or expanding the number of Justices beyond nine, was a question that Joe Biden refused to answer. In a town hall meeting with George Stephanopoulos last October (amid Amy Coney Barrett's nomination), when asked if he would stick to his statement from 2019 where he said, "I would not get into court-packing. I would not pack the Court," Biden was vague. Blaming President Trump for taking "our eye off the ball" with Barrett's nomination, he said, "you know, if I had answered the question directly, then all the focus would be on, what's Biden going to do if he wins, instead of on, is it appropriate, what is going on now?" Biden went on to say he was "not a fan" of court-packing, adding that if the vote on Barrett occurred before the election, "I'm open to considering what happens from that point on."
In his executive order, Biden designated two co-chairs to lead the Commission, Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law and a former White House Counsel, and Yale Law School Professor Cristina Rodriguez, former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. The commission, which will consist of 36 members, will hold public meetings to hear arguments from experts and interested parties and will be required to complete a report on its work within 180 days of its first public meeting.
The formation of the commission appears as Justice Stephen Breyer, the Supreme Court's oldest member, and a Democrat faces pressure from left-leaning legal activists to step down during Biden's term so that his successor would be appointed and confirmed while Democrats hold the majority in the House and Senate. On Tuesday, in a speech given to Harvard Law School Students, Breyer issued a warning to those seeking to overhaul the Supreme Court, saying that doing so risks compromising the trust in the institution that should be guided by principles, not politics. He advised they should think "long and hard" about the ramifications, adding:
“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”
Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-Ariz.) both currently oppose dumping the filibuster and oppose expanding the court. To both Democrats and Republicans, the order came as confirmation that Biden has every intention of packing the court. Progressive Rep. Mondaire Jones (D-New York) celebrated, declaring that “to restore our democracy, we must expand the Supreme Court.”
Three of the Supreme Court's nine justices were appointed by President Trump, with six of them leaning conservative. Still, some regularly cross ideological lines to side with their liberal colleagues, most notably when the Court declined to hear Trump's cases regarding election fraud last year.
