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Biden Creates Commission to Explore Supreme Court Reform

President Biden signed an executive order Friday establishing the Presidential Commission on the Supreme Court of the United States, a bipartisan group of experts who will make recommendations on reforming the highest court in the country. The panel will analyze issues such as term limits and expanding the court as well as the court’s case selection, rules and practices but will not make specific reform recommendations.

Thirty-six people will sit on the panel, which includes former federal judges, legal scholars, attorneys who have appeared before the court and advocates for reform. The president gave the panel 180 days to complete its work, and during that time the group will hold public meetings and gather views from other experts with differing views.

In the end, the commission will generate a report analyzing numerous potential reforms, “including an appraisal of the merits and legality of particular reform proposals,” the executive order said.

Progressives began pushing the issue of the Supreme Court during President Trump’s administration. Then-Senate majority leader Mitch McConnell’s blockade of former president Obama’s Supreme Court nominee Merrick Garland (now Biden’s Attorney General) allowed Trump to appoint a justice soon after he came into office. That open seat, combined with two other vacancies on the court later in his administration, gave Trump the power to appoint three justices in his one term. That concerned liberals that he may have changed the court for decades to come, which is why many advocate adding seats to the Supreme Court.

But Biden has shied away from publicly supporting the expansion of the court, an issue he was frequently asked about on the campaign trail. “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,” Biden said in an October 2020 60 Minutes interview. “Presidents come and go. Supreme Court justices stay for generations.”

“If elected, what I will do is I’ll put together a national bi-partisan commission of scholars, constitutional scholars, Democrats, Republicans, Liberal, Conservative,” Biden added. “And I will ask them to over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of whack the way in which this is being handled.”

However, the executive branch is not the only avenue for court reform. As Progressive Rep. Mondaire Jones (D-N.Y.) said in a statement responding to the commission’s creation, “Congress has the power, and the constitutional duty, to set the size of the Court, as it has seven times throughout our history. My colleagues and I need not wait for the findings of a commission… We must expand the Supreme Court, before it’s too late.” Jones also said he was “hopeful” the commission would “join our rising movement for court expansion.”

This is not the first time the United States has appointed a commission to examine the federal courts. In the past 50 years, there have been eight major court commissions, according to Brookings. Still, changes to the courts are going to be difficult. As Brookings’ Russell Wheeler writes, “Federal court change—commission-motivated or otherwise—has largely been incremental. Support is typically diffuse and opposition well-organized. Interest groups argue that whatever problems exist are tolerable and change is risky. Even big changes [to the court in the past] had long gestation periods of legislative-judicial interaction and a consensus that action was needed.”

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