Via the NYT: Biden Creating Commission to Study Expanding the Supreme Court.
In his executive order on Friday, the president will create a 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 Mr. Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.
It will be a 180-day review.
I am certainly well aware that a commission such as this is often a way to seem to be doing something, without actually doing anything. But it is worth noting that it is also the kind of promise that could have easily been forgotten or postponed, so I am intrigued that Biden is following through in relatively quick order.
I have made my views known, which is that I am in favor of Court expansion because I would argue that other factors in our system have led to a substantial disequilibrium in the appointment of the Court itself. In simple terms is it profoundly problematic, from the viewpoint of basic representative democracy, that five of the six Justices that make up the Court’s conservative majority were appointed by presidents who came to office first (Bush 43) or exclusively (Trump) in contests wherein they lost the popular vote.
Put in even more simple terms: in over thirty years the Republicans have won the popular vote for president once (2004) and have been able to name 5 Justices in that time. There is something wrong with that picture, especially when one considers the profound power the Court has.
Further, the system already empowers a minoritarian institution (the Senate) in naming lifetime appointees. It is egregiously problematic that the Court is dominated by appointees from presidents who would not have been in office if they had had to at least get majority national support.
I lay this out in more detail in a post from last year, A Defense of Expanding the US Supreme Court.
For a differing view, see James Joyner’s post Against Packing the Supreme Court.
At any rate, the reality is that I do not expect Biden to pursue expansion, but am heartened that the discussion will continue, and at a level the will garner some public attention.
Update: Here’s the list of appointees. Looks like a quality group at first glance.
