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Biden Sets Up Commission To Study Supreme Court Reform

As a presidential candidate, Joe Biden said he opposed expanding the Supreme Court.
Andrew Harnik
As a presidential candidate, Joe Biden said he opposed expanding the Supreme Court.

Updated April 9, 2021 at 6:46 PM ET

President Biden signed an executive orderFriday setting up a bipartisan commission that will study U.S. Supreme Court reform, and, among other things, examine the size of the court and the justices' lifetime appointments.

"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 in a statement. "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 announcement marks the culmination of a campaign promise Biden made when repeatedly pressed on whether he would expand the Supreme Court to pack it with justices more aligned with his worldview. The Democratic candidate said he opposed expanding the court but said he favored the kind of bipartisan commission that the White House unveiled Friday.

The commission will be co-chaired by former White House counsel Bob Bauer and former Deputy Assistant Attorney General Cristina Rodríguez. Its other members include legal and other scholars as well as former federal judges and practitioners who have appeared before the court; advocates for the reform of democratic institutions and of the administration of justice; and experts on constitutional law, history and political science.

The commission is racially and ethnically diverse, and ideologically diverse. But the size of the commission — a whopping 36 members — and its mandate — not to produce actual recommendations — telegraph that the eventual report could end up on the ash heap of history.

Friday's announcement comes amid a debate over the composition of the nine-member court that now has a 6-3 conservative majority. Liberal advocates contend that an expanded Supreme Court would give Biden a real chance to implement a legislative agenda, which will otherwise almost certainly be mired in litigation due to conservative legal challenges.

Biden has rejectedthe idea of "packing" the court, a view that gained renewed attention this week when Justice Stephen Breyer, one of the court's three liberals, warned against an expansion of the Supreme Court.

In a speech at Harvard Law School, Breyer said the court's authority depends on "a trust that the court is guided by legal principle, not politics."

"Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust," Breyer said.

But as a candidate, Biden also saidthat if elected, he will convene a national commission to study the court system.

"It's not about court packing," Biden told CBS' 60 Minutes in October. "There's a number of other things that our constitutional scholars have debated, and I've looked to see what recommendations that commission might make."

The White House statement said the bipartisan commission will "hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining."

Among the questions the commission is to examine is whether the number of justices should be increased; whether there should be limits on how long a justice can serve, or age limits; and even whether there can or should be changes to the nomination and confirmation process, which in recent years has been altered significantly.

The executive order directs the commission to complete its report within 180 days of its first public meeting.

A full list of members is here.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Krishnadev Calamur is NPR's deputy Washington editor. In this role, he helps oversee planning of the Washington desk's news coverage. He also edits NPR's Supreme Court coverage. Previously, Calamur was an editor and staff writer at The Atlantic. This is his second stint at NPR, having previously worked on NPR's website from 2008-15. Calamur received an M.A. in journalism from the University of Missouri.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.