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Biden creates commission on expanding the Supreme Court

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President Biden on Friday will sign an executive order that creates a commission to study adding seats to the Supreme Court.

Many Democrats want to expand the number of justices after former President Donald Trump successfully nominated three justices, tilting the court in a more conservative direction.

The commission will be “comprised of a bipartisan group of experts on the Court and the Court reform debate,” the White House said in a release.

But Republicans and judicial purists alike decry the idea as “court-packing” and say it will undo the Supreme Court’s historical insulation from politics. Former President Franklin D. Roosevelt unsuccessfully sought to pack the court in the 1930s after conservative justices ruled against some of his New Deal policies.

“The Commission’s purpose is to provide 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,” the White House said.

“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.”

The Supreme Court building on Capitol Hill in Washington on March 21, 2021.
The Supreme Court building on Capitol Hill in Washington on March 21, 2021.
Patrick Semansky/AP

The commission will hold public meetings and issue a report within 180 days for its first meeting, the White House said.

The commission will be co-chaired by NYU Law professor Bob Bauer, who worked as White House counsel to President Barack Obama, and Yale Law School professor Cristina Rodriguez, an Obama Justice Department and Biden transition alum.

The White House named 34 commissioners in addition to the co-chairs.

Prominent panelists include Harvard Law School professor Jack Goldsmith, a veteran of Republican President George W. Bush’s Justice Department, and his Harvard colleague Laurence Tribe, who was an outspoken critic of former President Donald Trump.

Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the inauguration of President Joe Biden on the West Front of the US Capitol on Jan. 20, 2021.
Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett arrive for the inauguration of President Joe Biden on the West Front of the US Capitol on Jan. 20, 2021.
Jonathan Ernst-Pool/Getty Images

The commission also includes Sherrilyn Ifill, president of the NAACP Legal Defense & Educational Fund, and former Bill Clinton speechwriter Michael Waldman, president of the Brennan Center for Justice at the NYU School of Law.

The idea of Democrats adding seats to the high court gained momentum last year following the death of Justice Ruth Bader Ginsburg, a member of the court’s liberal wing. She was replaced with the more conservative Amy Coney Barrett.

Democrats also were outraged when Senate Republicans refused to confirm Obama’s nominee Merrick Garland in 2016 to replace conservative Antonin Scalia. Senators in 2017 confirmed Trump’s nominee Neil Gorsuch to fill Scalia’s seat.

Seated from left: Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice of the United States John G. Roberts, Associate Justice Ruth Bader Ginsburg and Associate Justice Samuel Alito Jr. Standing behind from left: Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan and Associate Justice Brett M. Kavanaugh.
Many Democrats want to expand the number of justices after former President Donald Trump successfully nominated three justices.
J. Scott Applewhite/AP

On the campaign trail, Biden last year pledged to create a court reform commission. But at the time, Biden said that while he believed the Supreme Court was “getting out of whack” he was “not a fan of court packing.”

“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden told CBS’ “60 Minutes” in October.

“Presidents come and go. Supreme Court justices stay for generations.”

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