Bloomberg Law
Free Newsletter Sign Up
Bloomberg Law
Advanced Search Go
Free Newsletter Sign Up

Biden Names Panel to Weigh Bigger Supreme Court, Term Limits (2)

April 9, 2021, 10:00 PM

President Joe Biden on Friday named a panel to study possible changes to the U.S. Supreme Court, including calls for term limits and more justices, fulfilling a campaign promise as progressives push to overhaul a court they say has been unfairly stacked with conservatives.

The 36-member commission will consist heavily of academics, along with a handful of former judges and courtroom advocates. The co-chairs, former White House Counsel Bob Bauer and former Deputy Assistant Attorney General Cristina Rodriguez, are both veterans of former Democratic President Barack Obama’s administration.

Liberal activists have been urging Supreme Court expansion to offset the 6-3 conservative majority created by three appointments by former President Donald Trump. The philosophical tilt has opened the possibility the court could overturn the constitutional right to abortion, invalidate gun regulations and roll back gay rights, though so far the justices have moved slowly on those issues.

Biden said during the campaign he is “not a fan” of adding seats to the court, something critics deride as “court packing.” But Biden also said the court system is “getting out of whack” and promised to consider the commission’s recommendations.

The commission includes some high-profile liberal figures, among them former acting Solicitor General Walter Dellinger, Harvard Law School Professor Laurence Tribe, NAACP Legal Defense and Educational Fund President Sherrilyn Ifill and Yale Law School Dean Heather Gerken. The panel will also include Thomas Griffith, who was a conservative federal appeals court judge in Washington until he stepped down last year.

The White House said in its announcement the commission will examine “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.” Biden directed the commission to complete its report within 180 days of its first meeting.

The announcement drew fire from Senate Minority Leader Mitch McConnell, who called the commission “a direct assault on our nation’s independent judiciary and yet another sign of the far left’s influence over the Biden administration.”

Court Packing

The Constitution doesn’t say how many justices the court must have, but Congress has left the number at nine since 1869. The idea of adding justices hasn’t been seriously discussed since President Franklin Roosevelt unsuccessfully pitched a court-packing plan to Congress in 1937.

“We hope this commission is simply an empty gesture to the radical left,” said Mike Davis, president of the Article III project, which pushes for conservative judicial nominees. “But there is real danger in President Biden giving credibility to the idea of court packing; he is playing with fire and threatening the constitutional foundation of this country.”

Some liberals said Biden isn’t going far enough.

The announcement is “a major nod to the momentum for court reform,” Brian Fallon, executive director of Demand Justice, which pushes for a more liberal judiciary, said in a tweet. “But this panel of mostly academics is not going to be a vehicle for the change needed.”

As a practical matter, major changes to the court are unlikely anytime soon. Adding seats would require an act of Congress -- something Republicans could easily block unless the Senate eliminates the filibuster. And term limits might require a constitutional amendment, although scholars disagree on that point.

On Tuesday, Justice Stephen Breyer said that packing the court could undermine public trust that the court is guided by legal principles, not politics.

“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” he said in a Harvard Law School speech. Another Supreme Court liberal, Justice Ruth Bader Ginsburg, expressed similar views before she died last year.

Breyer, a Democratic appointee and the oldest justice, has become the center of speculation that he might retire in the coming months and give Biden his first Supreme Court vacancy to fill.

(Updates with McConnell reaction in seventh paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Jon Morgan

© 2021 Bloomberg L.P. All rights reserved. Used with permission.