President Biden’s commission on potentially expanding the Supreme Court held its first meeting Wednesday amid Democratic jitters over a just-accepted abortion case that will be heard by the majority Republican-nominated justices.
The group of more than three dozen scholars and activists convened via webcast for just 21 minutes. The first meeting begins a 180-day window to produce a report evaluating reforms.
Biden previously opposed “court packing,” but he formed the commission in response to Democratic outrage over former President Donald Trump’s successful nomination of three justices, which made the nine-person court more conservative.
This week, progressive concern mounted when justices agreed to review a 2018 Mississippi law that would ban abortions after 15 weeks of pregnancy, which would cover most of the second trimester.
Commission co-chair Cristina Rodriguez, an Obama Justice Department and Biden transition alum, said that the body will work to “hear from a wide array of diverse voices” on reforming the Supreme Court.
Rodriquez, a Yale Law School professor, said, “We’re not charged with making specific recommendations but rather we are to provide an evaluation of the merits and legality of particular reform proposals being debated today.”
But she added that “we are not just to summarize familiar arguments or rehash debates that are in academic literature or political or public commentary,” but instead “we are to critically evaluate arguments and claims.”
The first meeting included a swearing-in of members and a discussion about the scope of the review.
Commission co-chairman and NYU Law professor Bob Bauer, who worked as White House counsel to President Barack Obama, said, “we’re going to be encouraging a very broad public participation.”
The commission has a new dedicated page on the White House website where the public can submit comments.
“We encourage members of the public to submit their comments by August 15, 2021, to ensure that we have ample time in which to consider them,” Bauer said.
Bauer said there will be six additional commission meetings, two of which will feature full days of testimony from experts, with the first one expected in late June.
Although expanding the number of justices is getting the most attention, commissioners said that there will also be a review of imposing term limits or a mandatory retirement ages, as well as increasing Congress’ power to reverse Supreme Court rulings.
Commissioner Nancy Gertner, a retired federal judge and Harvard Law School professor, said that the review will include turning the Supreme Court into a “lottery of judges” pulled from federal appeals courts for a given case.
Any effort to expand the size of the court would trigger intense partisan warfare in Washington and may be unachievable due to Democrats’ bare 50-50 majority in the Senate, where Vice President Kamala Harris breaks ties. Sixty votes generally are required for substantive legislation.
Commission members include Sherrilyn Ifill, president of the NAACP Legal Defense & Educational Fund, and former Bill Clinton speechwriter Michael Waldman, president of the Brennan Center for Justice at the NYU School of Law.
Biden last year pledged to create a court reform commission. But at the time, Biden said that while he believed the Supreme Court was “getting out of whack,” he was “not a fan of court packing.”
In 1983, Biden said that court packing was a “bonehead idea” when President Franklin D. Roosevelt attempted it in the 1930s because it undermined the court’s independence.