President Biden Creates Supreme Court Commission To Consider Court-Packing Plan

On Friday, President Joe Biden issued an executive order forming the Presidential Commission on the Supreme Court of the United States. The order is the fulfillment of his pledge on the campaign trial to consider the expansion of the Supreme Court, a court-packing scheme advocated by some Democrats to retake control of the court from its current conservative majority. Even though I have long argued for the expansion of the Supreme Court, I opposed these calls as a raw effort to pack the Court.  I have a column out this morning discussing the Commission.

The group is called

“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 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 36 members include many respected and thoughtful academics.  It is also heavily liberal and Democratic.  Professor Josh Blackwell notes that, by his count, there are only around seven moderate to conservative members giving an over 2-1 advantage for liberals on the Commission. As Blackwell notes, that is better than many faculties which have only one or two (if any) conservative faculty members. Over the last couple of decades, faculties have purged their ranks of conservative and libertarian faculty members.  The result is a diversity of thought that often runs from the left to the far left on faculties.  This imbalance is often used in Washington to produce letters with hundreds of law professors universally denouncing conservative nominees or supporting liberal proposals.

Such ideological bias is now an assumption on faculties, panels, and journals. That does not mean that these members will not give serious consideration to these issues.  Some of these members did sign the letter seeking the rejection of Justice Brett Kavanaugh or supporting the impeachment of President Trump. However, while those stands are likely to alienate conservatives, such views do not necessarily mean that they cannot do a fair or thorough job.

For the record, I have argued for the expansion of the Court for decades. My proposal was to increase the court to 17 or 19 members (the larger option allows for the possible return to the tradition of two justices sitting on lower courts each year by rotation). My review of similar size courts (including appellate courts sitting “en banc”) shows less stagnation around a single jurist as the swing vote and greater intellectual diversity.

However, there was a critical catch. The increase to 17 or 19 justices would occur slowly so no president would be allowed to appoint more than two additional justices in a term. The commitment would be for a full court over roughly two decades. That is the difference between reforming and packing a court.

This week, many reaffirmed that they want a quick expansion to create an unassailable liberal majority. It is precisely what Ginsburg warned against. When asked about calls to expand the Court, Ginsburg said it would destroy the continuity and cohesion of the Court. She added to NPR: “If anything would make the court look partisan, it would be that—one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

That view was dismissed by Democratic members who declared that control of Congress would lead to control of the Court.  House Judiciary Committee Chairman Jerry Nadler also declared that “the incoming Senate should immediately move to expand the Supreme Court.” Rep. Joe Kennedy III, D-Mass., tweeted: “If (the Senate) holds a vote in 2020, we pack the court in 2021. It’s that simple.”

There are also proposals for the creating of entirely new courts or limiting the jurisdiction of the Supreme Court. This parade of horribles will now be the focus of this Commission. The hope of advocates is that they will recommend some form of substantive change but they will face opposition in the Congress which (unlike the Commission itself) is almost evenly divided.

These calls may appeal to the most extreme voices in the Democratic Party, but the public is overwhelmingly opposed to court packing schemes. Yet, there is a smaller percentage that drives both parties in Congress because they have a pronounced impact in primaries. The Commission may offer some political cover to Biden but it is unlikely that many on the far left will be satisfied with cosmetic changes after 180 days.

129 thoughts on “President Biden Creates Supreme Court Commission To Consider Court-Packing Plan”

  1. The Bill of Rights were designed to “restrain” unconstitutional authority. To essentially prevent the authoritarian practices of the 18th Century Redcoats. From eminent domain to 4th Amendment searches to warrantless domestic spying – this court is not “conservative” but leans authoritarian.

    The War on Drugs and 21st Century warrantless domestic spying have effectively embraced (not restrained) the very same practices of the 18th Century Redcoats. “Conservative” is not the right terminology for this court.

  2. I wonder if the justices who declined to hear election fraud cases are having regrets.

    They brought this mess on themselves and on the whole country by declining to hear what was likely to be the most important issue to come before the Court in its history.

  3. The Left is grabbing as much power as it can, as fast as it can. Check them, or lose the opportunity to do so.

    Democrats, how would you feel if Republicans had done this when they were in the White House and Congress? Would you be celebrating if Republicans added a bunch of seats to the SCOTUS? Simply appointing someone to an open seat is not court packing. It’s filling a vacancy. Creating a dozen or so vacancies in order to swing the Court is packing.

    If you would have accused Republicans of tyranny, and fought it, then it’s also tyranny that Democrats are doing it. Difference is that Republicans did not expand the SCOTUS in order to pack it. They just fill open vacancies.

    The Left is tyrannical, and they are working hard to create a Single Party state with their hegemony.

    1. This is all unconstitutional and must have been struck down by the Supreme Court.

      The Supreme Court and judicial branch are derelict and treasonous.

  4. Can any credible student of History point out when if ever….the Republican Party attempted to Pack the Supreme Court by adding Seats to the Court?

    My perception it has always been the Democrats that wanted to go that way when they wanted to achieve their agenda after being thwarted in Congress….am I right or wrong in thinking that?

    1. “At its largest, during the Civil War, the Court had ten Justices. While some scholars assert that the expansion to ten Justices was driven by docket needs, otherscontendthat Congress enlarged the Court to allow President Abraham Lincoln to“appoint Justices who favored the Republicans’ agenda of combatting slavery and preserving the union.””

      1. And those members of Congress were totalitarian communists-in-waiting. Lincoln had no constitutional basis for the denial of licit secession or its corollaries, war, the suspension of Habeas Corpus and the confiscation of private property. There was no overriding legal rationale for Justices to favor violating laws making slavery legal or for preserving a union, half of which desired separation not denied in the Constitution. The issue of the legality of slavery must have been taken up in Congress and abolished through advocacy, boycotts, divestiture, etc.

    2. My perception it has always been the Democrats that wanted to go that way when they wanted to achieve their agenda after being thwarted in Congress….am I right or wrong in thinking that?

      Democrats have never advanced there agenda, through legislation. Always the courts.

      1. Yep, Democrats never pass any legislation. Only Republicans do that. (sarc)

  5. The American Founders did not establish a second and redundant hybrid legislative/executive branch.

    Seating more than one Justice on the Supreme Court transforms the judicial branch into a second legislative and executive branch hybrid allowing, accommodating and facilitating corruption.

    The judicial is not a co-equal branch of government and it is not a legislative or executive branch – meaning it may not legislate, modify legislation or execute legislation – it is juridical in that it merely adjudicates the actions of the two other branches…

    or not.

    Omission and Dereliction constitute the motto of the Supreme Court.

    1. “The goal of Socialism is Communism.”

      – Vladimir Ilyich Lenin

      Socialism is a ruse; a red herring.

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