The idea of “packing” the Supreme Court first came up when then-President Donald Trump appointed now-Justice Amy Coney Barrett to the bench, securing its conservative tilt for what could be decades to come. Democrats had suggested adding justices and expanding the bench in retaliation, but on the campaign trail, Joe Biden held back his support for such a move, instead promising to establish a bipartisan commission to study potential reform measures.
Now, Biden is already starting to make good on that: according to Politico, the president has crafted the framework for a commission on Supreme Court reform, and he’s even nominated its first few members.
Biden makes his move
Politico’s report, which has not yet been confirmed by the Biden administration, provided few salient details, but it did note that the commission will be housed within the White House Counsel’s office and will be composed of anywhere from nine to 15 members.
One of the co-chairs of the commission will reportedly be Biden campaign attorney Bob Bauer.
According to Politico, Bauer will be joined as a co-chair by Cristina Rodriguez, a Yale Law School professor and former deputy assistant attorney general in the Obama administration.
Also said to be nominated to the commission by Biden was Caroline Fredrickson, the former president of the progressive American Constitution Society, as well as Jack Goldsmith, a Harvard Law School professor and former assistant attorney general in the Bush administration, Politico reported.
Packing the courts?
It remains unclear what sort of reforms will be recommended by the panel, but a coalition of several progressive activist groups that has dubbed itself “Unrig the Courts” has put forward its own proposals that include packing the high court and lower benches, too, particularly at the appellate level where the vast majority of cases are ultimately decided.
Also proposed by the progressive group was the imposition of term limits on Supreme Court justices, as well as strict new ethics and disclosure guidelines.
While that certainly doesn’t sound too promising, George Mason University law professor Ilya Somin, writing for libertarian outlet Reason, suggested that Americans shouldn’t be too overly concerned about the commission and what it might recommend, as he feels it’s “highly unlikely” that court-packing will be on that list.
“To the contrary, it is more likely to instead have a working majority opposed to the idea,” Somin wrote. “At the very least, the Commission will almost certainly not come up with a broad consensus in favor of court-packing, or any similar plan, such as ‘rotation’ and ‘court balancing.'”
Somin’s assessment was based on his personal knowledge of the panel’s named members and their previously expressed opposition to court-packing — not to mention the staunch opposition to the idea from Republicans and even some moderate Dems, to say nothing of the potential political blowback that would come from such a move.
Is that really a hole Biden and his administration want to dig themselves into?