US President Biden forms commission to study expanding Supreme Court

(FILES) In this file photo taken on December 24, 2018 the Supreme Court Building is seen in Washington DC. – President Joe Biden will set up April 9, 2021 an expert commission on reform of the powerful US Supreme Court, the White House announced. (Photo by Eric BARADAT / AFP)


by Michael Mathes
Agence France Presse

WASHINGTON, United States (AFP) — US President Joe Biden on Friday established an expert commission to study reforming the powerful US Supreme Court, including the explosive question of expanding its bench.

The move follows months of debate over whether Democrats should seek to expand the court beyond its current nine justices, after moves during Donald Trump’s presidential term gave the bench a firm conservative majority.

The Supreme Court sits as the final arbiter on fundamental American legal matters, which can include minority and LGBTQ rights, racism, the death penalty and electoral controversies — and its justices are appointed for life.

Making good on a campaign promise, Biden signed an executive order creating a bipartisan commission of three dozen experts, including legal and judicial scholars, former administration officials and former federal judges, to weigh the highly-charged issue of reforming the body.

One of the panel’s main duties is to produce “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,” said the executive order published by the White House.

The order itself did not specifically address expanding the high court.

But in an earlier statement, the White House said the topics to be studied will include “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 order directs the commission to complete its report within 180 days of its first public meeting.

Commissioners include Nancy Gertner, a US District Court judge from 1994 to 2011, and constitutional expert Laurence Tribe, a Harvard University professor and widely read scholar who also worked in Barack Obama’s administration.

The commission’s creation comes six months after the controversial confirmation of conservative judge Amy Coney Barrett to the Supreme Court following the September 2020 death of Ruth Bader Ginsburg, a liberal icon.

Trump nominated Barrett days after Ginsburg’s death, and weeks before the November election — an election Trump lost to Biden.

The confirmation process triggered outrage from many Democrats, who pointed to the US Senate Republican leadership’s refusal to hold hearings for Obama’s Supreme Court pick in early 2016, much less a vote, on grounds that it was too close to that year’s November presidential election.

– ‘Direct assault’ on judiciary? –
Republicans have pushed back at what they see as Democratic efforts to “pack” the court.

Biden’s move drew a fierce rebuke from top Senate Republican Mitch McConnell, who said most Americans oppose reforming the court and warned that the president was conducting a “direct assault” on the judiciary.

“This faux-academic study of a non-existent problem fits squarely within liberals’ years-long campaign to politicize the Court, intimidate its members and subvert its independence,” McConnell said in a statement.

Just this week, Justice Stephen Breyer warned liberal advocates of expanding the court to think “long and hard” about the risks involved, saying it could diminish trust Americans place in the judiciary.

Some activists meanwhile have been campaigning for Breyer, who at 82 is the court’s oldest member, to retire in order to provide Biden with a chance to nominate a young progressive.

Several Democrats have been open to the idea of expanding the court, as a way of rebalancing the scales that they believe tilted too far to the right after Trump got three nominees onto the bench.

But Biden has kept the suggestion at arm’s length. “Whatever the position I take on that, that will become the issue,” Biden said when asked about it during a September presidential debate with Trump.

On Friday, White House press secretary Jen Psaki said the commission will weigh “the pros and cons” of expanding the court.

“He wants smart, legal experts, people who have been thinking about these issues… to have a discussion and debate about it,” she added.

Congress grew and shrank the size of the court several times in the mid-19th century, including in 1863 when Republicans expanded the court to 10 seats to give president Abraham Lincoln an appointment.

It was reduced to seven a few years later, but in 1869 it was expanded back to nine, where it has remained.

© Agence France-Presse