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Biden creating Supreme Court reform commission, incl. expanding size

President Joe Biden delivers remarks on March 10, 2021, in the Eisenhower Executive Office Building at the White House. (Official White House Photo by Adam Schultz)
April 09, 2021

President Joe Biden signed an executive order on Friday to create a commission of 36 legal experts to conduct a 180-day study on Supreme Court reform, including expanding the court’s size.

A White House statement provided to American Military News said the commission would examine reform topics including “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 commission will “hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining,” and provide a report of its findings within 180 days.

The commission will be led by former President Barack Obama’s White House counsel Bob Bauer, as well as Obama’s former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice, Cristina Rodriguez.

As a presidential candidate, Biden has proposed the idea of the commission amid Democrat pressure for “court packing” to add more seats to the 6-3 conservative court.

In an Oct. 25, 2020 interview with CBS’ 60 Minutes, Biden defended his idea for a commission.

“It’s not about court packing,” Biden said at the time. “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.”

Biden said, “the last thing we need to do is turn the Supreme Court into just a political football; whoever has the most votes gets whatever they want.”

Days earlier, Biden said during the Oct. 22, 2020 presidential debate, “I would not get into court packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”

Aside from expanding the court, one proposal that has been debated is term limits, in order to force justices out so they are more replaceable. Such calls for term limits came after Justice Ruth Bader Ginsburg defied calls to retire during President Obama’s administration, ultimately allowing President Donald Trump to replace her with a conservative justice upon her death.

Democrats have been urging 82-year-old Supreme Court Justice Stephen Breyer to retire from the court so Biden can nominate a replacement to be confirmed before the Senate could be potentially controlled by Republicans.

White House Press Secretary Jen Psaki told reporters on Friday that Biden believes Breyer and other justices can make their own decisions about retiring.

Breyer said in a speech to Harvard Law School on Tuesday that those seeking to reform the court “whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of ‘court-packing,’ [should] think long and hard before embodying those changes in law.”

Breyer added that “it is wrong to think of the Court as another political institution,” and such a perception erodes trust.