President Biden has ordered a 180-day study of adding seats to the Supreme Court, making good on a campaign-year promise to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices.
Biden acted under pressure from activists pushing for more seats to alter the ideological balance of the court after Donald Trump appointed three justices, including one to a seat that Republicans had blocked his predecessor, Barack Obama, from filling for almost a year.
The result is a court with a stronger conservative tilt, now 6 to 3, after the addition of Trump’s choices, including Justice Amy Coney Barrett, who was confirmed to replace Justice Ruth Bader Ginsburg just days before last year’s presidential election.
But while Biden, a former chairman of the Senate Judiciary Committee, has asserted that the system of judicial nominations is “getting out of whack,” he has declined to say whether he supports altering the size of the court or making other changes — like imposing term limits — to the current system of lifetime appointments.
It is not clear that the commission established by Biden will by itself clarify his position.
Under the White House order establishing it, the commission is not set to issue specific recommendations at the end of its study — an outcome that is likely to disappoint activists.
In his executive order today, Biden created the 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.
The panel will be led by Bob Bauer, who served as White House counsel for Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Obama.
Progressives say that Republicans unfairly gained an advantage on the court by blocking Obama’s nomination of Judge Merrick Garland in 2016, and they see adding seats to the court, setting term limits or instituting other changes as a way to offset the power of any one president to influence its makeup.
Conservatives have denounced the effort as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.
The issue of whether to alter the size of the court, which has been set at nine members since just after the Civil War, is highly charged, particularly when Congress is almost evenly divided between the two parties.
An attempt by Biden to increase the number of justices would require approval of Congress and would be met by fierce opposition.
The commission is intended to provide a forum to debate the issue that is protected from the passions that will continue to rage in the political arena, according to people familiar with Biden’s intentions.
Biden understands, they said, that changes to the size of the court, or limitations on the length of time that a justice can serve, would be “reforms for the ages” that would have far-reaching implications for the courts for decades, not just during Biden’s time in office.
During his campaign for president, activists urged Biden to promise that he would expand the court as a way of countering the conservative mark that Trump was able to put on the institution.
In addition to Justice Barrett, Trump also appointed Justices Brett Kavanaugh and Neil Gorsuch.
“There’s growing recognition that the Supreme Court poses a danger to the health and well-being of the nation and even to democracy itself,” said Aaron Belkin, the director of the group Take Back the Court. “A White House judicial reform commission has a historic opportunity to explain the gravity of the threat and to help contain it by urging Congress to add seats, which is the only way to restore balance to the court.”
The article first appeared in The New York Times.