It was October 2020 on the presidential campaign trail when then-Democratic candidate Joe Biden, facing pressure from the far left arm of his party, conceded on 60 Minutes that “If elected, what I will do is I’ll put together a bipartisan commission [...] 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 it's being handled.”
This was largely considered an emergency concession; while Biden was reluctant to offer support for what some see as court packing, he was equally fearful of upsetting more radical members of his own party with Election Day nearing. Court packing involves changing the number or composition of judges on a court, typically making it more favorable to particular goals or ideologies. Biden’s statement declined to take any definitive stance on this action, though his use of the term “court packing” is interesting, given that it generally has a negative connotation.
The Politics of Court Packing
Senior members of the Democratic Party had floated the idea of a court expansion with some hesitance early on in the primaries, but they were met with surprising support from the party base and pursued the idea with more gusto. The idea caught on with younger supporters who were interested in protecting liberal legislative interests as it started trending on Twitter. On October 26, 2020, Senator Alexandria Ocasio-Cortes tweeted out, “Expand the court.” opening a conversation among her young following. By the end of the primary, Democratic Senators Kamala Harris, Amy Klobuchar and Cory Booker expressed interest in court packing. “It’s not just about expansion, it’s about depoliticizing the Supreme Court,” said Senator Elizabeth Warren “It’s a conversation that’s worth having.”
Court packing has been criticized as a method of trying to politicize an institution that is supposed to be impartial in its evaluations of whether various issues are constitutional or not. Though justices are known to have particular ideological leanings, they are expected to evaluate each case presented before them without political bias. The majority of the Supreme Court’s justices are now conservative, and Republicans have been vehemently opposed to the prospect of additional justices. According to Senate Minority Leader Mitch McConnell, “The left wants a sword dangling over the Justices when they weigh the facts in every case. As the Democratic Leader threatened just two years ago, Democrats want the Justices to know that they will ‘pay the price’ for rulings that Democrats don’t like.”
The conversation about expanding the court was once again fueled by the last-minute appointment of Justice Amy Coney Barrett immediately after the passing of Justice Ruth Bader Ginsburg, who had long been a liberal icon and progressive leader. This sudden shift in the court’s composition resulted in a 6-3 ideological skew towards conservatives, with all three of President Donald Trump’s conservative appointments being relatively youthful and in possession of a life appointment.
A Brief History of Supreme Court Reform
Court packing is not an inherently new idea in American politics. Article III, Section 1 of the Constitution states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Nowhere in the foundational document is there an enumeration of the justices of the Supreme Court.
When President Washington passed the Judiciary Act of 1789, he established a six-person court and a barebones framework for district and circuit courts. With the continued expansion of circuit courts as the nation continued a pattern of westward expansion, Congress justified the addition of justices to the Supreme Court. By 1863, under President Abraham Lincoln, the highest court in the nation had ten justices. This was later consolidated into seven as the circuits were redistricted since the original allocation of justices was based on the number of circuit courts. In 1869, President Ulysses S. Grant restored two seats that had been struck earlier in order to increase his own party’s impact on the judiciary, leaving the Court with the nine-person bench that has persisted until today.
The Presidential Commission on the Supreme Court
The Presidential Commission on the Supreme Court of the United States was officially established on April 9, 2021, fulfilling yet another of Biden’s campaign promises within the first 100 days. The commission will focus on officially compiling arguments both for and against the court’s reform, and discuss the several potential avenues by which change can be instituted.
The twenty-six-member commission consists of twenty-four men and twelve women, all of whom are involved in the legal field in some capacity. The co-chairs are Obama alums Bob Bauer, an NYU law professor who previously served as White House counsel, and Cristina Rodríguez, a Yale Law professor who also served as assistant attorney general. The group skews left, with something of a 3:1 ratio of liberals to conservatives by one measure performed by Cato Institute economist Ilya Shapiro, staying true to Biden’s commitment to featuring voices on both sides of the aisle.
The group has been criticized by some due to the overwhelming association of its members to elite universities, with some saying that this represents an inherent bias. Many are academics. Some are even members of the University of Chicago’s extended community: Professor William Baude (Professor of Law and Faculty Director of the Constitutional Law Institute), Professor Alison L. LaCroix (Robert Newton Reid Professor of Law at the University of Chicago Law School and Associate Member of the University of Chicago Department of History), Professor David Strauss (Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic), and alum Michael S. Kang have all been enlisted as members.
The rules and practices of the Court are expected to come under scrutiny. Currently, the Supreme Court serves as an appellate court in all but a few specific circumstances where it has original jurisdiction: cases between two states; between the nation and a state; between the state and a citizen; and where one party is a public minister, like an ambassador. Four of the nine justices must vote in favor of hearing in order for a writ of certiorari (a document granting an appeal) to be issued and for the case to proceed. There are roughly 100-150 cases heard each year out of over seven thousand petitions filed. Cases that are rejected have lost the opportunity to appeal the decision.
The commission will also consider the term lengths of the justices, with some even suggesting a term limit to promote greater turnover. This is a difficult topic because the lifetime appointment has long been considered an effective method of depoliticizing the Court, as executives and senators alike cannot influence the position once it has been granted. Many feel, however, that the static nature of the Court prevents it from changing actively with the times and better representing the people’s beliefs.
Reactions to the Commission
The only member of the high court itself to speak out about these impending changes is Justice Stephen Breyer, a liberal-leaning moderate who was nominated by President Bill Clinton and has held his seat for twenty-seven years. Speaking at Harvard Law School, he criticized the expansionist ideas, primarily arguing that “the court is guided by legal principle, not politics'' and that drastic changes to the court “can only feed that perception, further eroding that trust.” This comes in the wake of many calls from within the party for the eighty-two-year-old justice to step down while both the presidency and Senate majority are held by Democrats, allowing a new, younger justice to be nominated to strengthen the liberal standing on the Court.
In a largely political move meant to simply maintain the discussion, Congressional Democrats introduced legislation onto the floor proposing a thirteen-person court on April 14, 2021, only a few days after the commission was announced. The bill has been championed and formally proposed in the press by Senator Ed Markey of Massachusetts and Representative Jerry Nadler of New York, with co-sponsors Representatives Hank Johnson of Georgia and Mondaire Jones of New York. In response to questions regarding the bill, House Speaker Nancy Pelosi, told reporters she has "no plans to bring it to the floor,” agreeing with Biden’s more conservative approach of using a commission for the assessment.
The commission is expected to submit its final report in October 2021. Until it reaches a decision about the merits of instituting changes in the Court and submits a recommendation regarding further actions to the president, very little can be done. Even if the Democrats do decide to make a concerted effort to pass a more radical bill to alter the size of the court of term spans, they are facing a strenuous uphill battle in convincing moderates and centrist Republicans to support it. They could also be risking their slim Congressional majority due to potential losses in the 2022 midterms.
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