Biden unveils commission to study possible expansion of Supreme Court

The commission, however, is likely to disappoint liberals who are looking for quick action to blunt the court’s conservative majority, while giving the president cover to avoid wading into the contentious debate. The members are not tasked with giving Biden specific recommendations but rather providing an analysis of a range of proposed changes to the court. The executive order establishing the commission mandates that the group hold public meetings and take input from a range of stakeholders, with the report expected in October.

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Democratic presidential nominee Joe Biden initially dodged questions in October 2020 about whether he would pack the court before saying he opposed it. (JM Rieger/The Washington Post)

“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 practice,” the White House said in a statement Friday.

President Donald Trump installed three justices on the Supreme Court, including Barrett, giving conservatives a 6-to-3 advantage for decades and triggering the liberal calls to expand the court.

The announcement comes on the heels of Justice Stephen G. Breyer’s remarks against court expansion this week, warning that it could make the court more political and undermine trust in the institution.

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“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” he said in a speech at Harvard Law School on Tuesday.

Some Democrats have called for expanding the number of justices to the Supreme Court in order to shift its ideological leaning. (Blair Guild/The Washington Post)

Most of the commission’s members are academics, and they come from a range of political backgrounds and philosophies. Bob Bauer, a top lawyer on Biden’s campaign, and Cristina Rodríguez, a professor at Yale Law School, will chair the commission, which will be run out of the White House Counsel’s Office.

The panel includes prominent liberals such as Caroline Fredrickson, former president of the American Constitution Society; Laurence Tribe, a professor emeritus at Harvard Law School; and Sherrilyn Ifill, president of the NAACP Legal Defense Fund. The group’s conservative members include Jack Goldsmith, a Harvard Law School professor and former top official in George W. Bush’s Justice Department; Keith Whittington, a professor at Princeton University; and Adam White, a resident scholar at the American Enterprise Institute.

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But liberals pounced on the announcement, warning that Congress should not wait for the commission’s report and instead take immediate action to overhaul the Supreme Court.

“Congress has the power, and the constitutional duty, to set the size of the court, as it has seven times throughout our history,” Rep. Mondaire Jones (D-N.Y.), a vocal advocate for court expansion, said in a statement. “My colleagues and I need not wait for the findings of a commission. We already know the obvious: we must expand the Supreme Court, before it’s too late.”

Sen. Ben Sasse (R-Neb.), a member of the Senate Judiciary Committee, called the commission and the liberal push to expand the court a waste of time.

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“President Biden knows that he doesn’t even have the votes in his own party to pack the court; he knows that court packing is a non-starter with the American people; and he knows that this commission’s report is just going to be a taxpayer-funded door stopper,” Sasse said in a statement.

Senate Minority Leader Mitch McConnell (R-Ky.) derided the commission, saying the “faux-academic study of a nonexistent problem fits squarely within liberals’ years-long campaign to politicize the court, intimidate its members, and subvert its independence.”

Liberals are also aggressively lobbying Breyer, 82, to retire from the Supreme Court so Biden could replace him with a younger justice while Democrats still control the Senate. The president has promised to nominate the first Black woman to the high court, but White House press secretary Jen Psaki said Biden is not pushing for Breyer to retire.

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“He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” she said Friday.

Demand Justice, a liberal group, launched a campaign Friday to pressure Breyer, marking the anniversary of Justice John Paul Stevens’s retirement announcement in 2010.

“We are now firmly in the window when past justices have announced their retirement, so it’s officially worrisome that Justice Breyer has not said yet that he will step down,” Brian Fallon, the group’s executive director, said in a statement. “The only responsible choice for Justice Breyer is to immediately announce his retirement so President Biden can quickly nominate the first-ever Black woman Supreme Court justice.”

Robert Barnes contributed to this report.