USA TODAY US Edition

Panel to study changes to Supreme Court

Biden’s new commission draws fire from the right

- John Fritze

WASHINGTON – President Joe Biden has announced he is forming a commission to study possible changes at the Supreme Court, responding to a call from liberals to expand the nine-member bench to blunt former President Donald Trump’s impact on the court.

Biden promised to name the commission as a candidate amid an outcry from Democrats over Trump’s nomination of three Supreme Court justices, including the rapid confirmati­on of Amy Coney Barrett just before the election, and a bevy of lower court judges that tilted the federal judiciary to the right.

The push for change at the nation’s highest court, where conservati­ves now have a 6-3 advantage, has put a squeeze on the White House. Throughout the campaign, Biden hedged when asked whether he supported expanding the court, though he allowed in October that he was “not a fan of court-packing.”

Biden’s bipartisan commission, which will have a six-month deadline, wouldn’t bind the White House to action. At the time, many saw the notion of a commission as a dodge – a way to demonstrat­e to party progressiv­es that he took the question seriously but not scare off centrist voters concerned about further politicizi­ng the court.

Advocates have been closely watching for any signal about the commission’s mandate and membership. Biden signed an executive order Friday creating the 36-member group, which will hold public meetings. The White House said it will study the length of service and turnover of the justices, the size of the court and its case selection, rules and practices. Justices currently have lifetime appointmen­ts.

Progressiv­e groups have been pushing for a number of other ideas besides increasing the number of justices. Those include term limits, set perhaps to 18 years; a code of ethics; a more formal process for recusals; and an expansion of lower courts, not only to offset the barrage of Trump appointees but also to deal with growing caseloads.

“The Supreme Court is a danger to the health and well-being of the nation and even to democracy itself,” said Aaron Belkin of the advocacy group Take Back the Court, which has pushed for an expansion. “This White House judicial reform commission has a historic opportunit­y to both explain the gravity of the threat and to help contain it.”

The commission drew fire from the right.

Senate Minority Leader Mitch McConnell, R-Ky., called it a “direct assault on our nation’s independen­t judiciary and yet another sign of the far left’s influence over the Biden administra­tion.”

Ilya Shapiro, vice president of the libertaria­n Cato Institute, said his first impression of the panel gave him pause. The membership, he said, is stacked with “very progressiv­e” academics.

“The court is the most respected government institutio­n other than the military, and arguments for restructur­ing essentiall­y express progressiv­e-elite dissatisfa­ction with its current compositio­n,” Shapiro said, adding he is not confident that any of the commission’s recommenda­tions would be “nonpartisa­n, feasible, legal” or “actually improve the Supreme Court.”

Advocates for expanding the court note the number of Supreme Court justices isn’t set in the Constituti­on and has often changed in the past. Congress grew the court to 10 during the Civil War to ensure a majority for Union policies, cut the nation’s highest bench to seven to deny President Andrew Johnson nomination­s, and ratcheted it up to nine to give President Ulysses S. Grant majority support on the court for his monetary policies.

At the same time, President Franklin D. Roosevelt’s failed attempt to “pack” the court in his second term underscore­s the fraught politics Biden would face with such a move.

That is why, throughout much of last year’s presidenti­al campaign, Biden sidesteppe­d the question. Trump hammered Biden over his evasive answers.

Opponents say growing the size of the court based on political pressure would significan­tly undermine its work, adding a veneer of politics to an institutio­n that ostensibly decides cases based on legal principle and not politics. Associate Justice Stephen Breyer was the latest to raise that point this week.

Breyer warned Americans to think “long and hard” about structural changes to the court in a wide-ranging address Tuesday.

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” Breyer said. “There can be no shortcuts to it.”

Biden campaign lawyer Bob Bauer, a former Obama White House counsel, will co-chair the commission, along with Cristina Rodríguez, a Yale Law School professor and former official in the Obama Justice Department. Others include Sherrilyn Ifill, president of the NAACP Legal Defense Fund, and Harvard Law professor Laurence Tribe.

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.” Associate Justice Stephen Breyer

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