Biden to Form Panel to Study Overhaul of High Court

Delivering on a campaign promise to look at Supreme Court reforms after three Trump appointments, the president is setting up a commission to examine potential changes including an expansion of the high court.

The U.S. Supreme Court. (Courthouse News photo/Jack Rodgers)

WASHINGTON (CN) — The White House said Friday that President Joe Biden will sign an executive order establishing a commission to consider reforms for the U.S. Supreme Court.

A statement from the Biden administration said the move is part of a commitment to study ways to “improve” the federal judiciary and expand access to the nation’s court system. 

The commission will be made up of legal scholars and past and present solicitors general who have argued before the Supreme Court.

“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,” according to the White House statement explaining the commission’s scope. 

About three dozen members of the commission were listed in the press release, and they’re expected to hold public meetings to discuss the issues they’re assigned to address. A report from those meetings will come within 180 days of their first meeting, according to the White House.

The creation of the commission comes after former President Donald Trump appointed three justices to the high court in his single term, a move that has led progressives to worry about the future of some of their top priorities including protecting abortion rights granted by Roe v. Wade. The  separation of church and state more broadly has also been a point of concern after the conservative majority rolled back some state restrictions keeping churches closed during the ongoing coronavirus pandemic. 

In an interview with “60 Minutes” last October, Biden said the high court was “getting out of whack” under Trump but he also expressed some doubts at the idea of expanding the court, something progressives have pushed for and conservatives have decried as an overreach. 

“The last thing we need to do is turn the Supreme Court into just a political football [and] whoever has the most votes gets whatever they want,” the then-candidate said. “Presidents come and go. Supreme Court justices stay for generations.”

“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,” he added, foreshadowing the new panel’s creation. 

One of the largest conversations following the hastened appointment of Justice Amy Coney Barrett was the concept of packing the court, or adding more seats which Biden could then fill with his appointees. 

But Justice Stephen Breyer, the court’s most senior liberal vote, expressed dismay at the idea, suggesting it would erode public trust in the court, during a prerecorded lecture released Tuesday as part of Harvard Law School’s annual Scalia Lecture series named after the late justice.

“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on other branches,” he said. 

Efforts to reform courts through legislative or executive commissions aren’t a new concept.

Biden’s would be the ninth such effort in just the last 50 years, according to the Brookings Institute. Biden himself participated in Senate committee hearings in the 1980s aimed at addressing high litigation costs which can delay justice for “plaintiffs and defendants, average citizens and large corporations.” 

The commission ended with the then-Senator Biden proposing the Civil Justice Reform Act, which mandated local cost and delay reduction planning and national assessments. The effort was enacted as part of a larger judicial reform effort, the 1990 Judicial Improvements Act, and created a listing, by name, of judges’ backlog of cases with the hope of seeing quicker resolution. 

Russell Wheeler, a visiting fellow at Brookings, examined the impact of Biden and others’ previous court reform efforts and offered this takeaway: “Progressive groups call for ‘big, bold solutions’ to deal with ‘courts . . . in crisis.’  History suggests that incremental change is their best, and most likely, hope.”

Friday’s announcement named two legal scholars as co-chairs for the reform commission: Bob Bauer, professor of practice and distinguished scholar in residence at New York University School of Law, and Cristina Rodriguez, Yale Law School professor and deputy assistant attorney general in the Justice Department’s Office of Legal Counsel.

Bauer’s history of publications include often critical takes on the Trump administration, including calling the former president’s effort to overturn the 2020 election an “assault on American democracy” in an Associated Press story which identifies the professor as a senior adviser to Biden.

A scan of Rodriguez’s publications shows the co-chair has spent lots of energy examining the role the courts have in the nation’s immigration system, often focusing on the Supreme Court’s more conservative actions against those who hope to enter the country. 

“The Trump administration has set out to destroy a vision of the American polity central to the nation’s democratic vitality—a vision of a nation open to newcomers and its own expansion without regard to race or wealth and cognizant of its obligations of humanitarian protection,” she wrote in an Oct. 2020 essay titled “Closing the Nation’s Doors,” which she authored for the journal Democracy. 

Requests for comment from Bauer and Rodriguez were directed to the White House’s press office, which offered no additional comment at this time.

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