In January, President Joe Biden created a Presidential Commission to examine the Supreme Court of the United States. According to the White House, the purpose of this commission was to analyze the main arguments of current public debates for or against Supreme Court reform.
Last week, the final report of the commission was made public. The contents of the report will disappoint progressive activists, who hoped that it would back their campaign to urge Biden to fill the Supreme Court with more justices to establish a liberal supermajority.
According to the report, although there’s widespread consensus among legal scholars regarding the fact that Congress is authorized by the Constitution to expand the Court size, it states that there is still deep disagreement about whether Court expansion is wise at this time. The Commission does not attempt to assess or evaluate the merits of any argument and has no opinion on whether expansion is wise.
It is impossible to say that there isn’t There is deep disagreementIt is difficult to say how wise court packing was. Justice Stephen Breyer is the longest serving Democratic Supreme Court appointee and has condemned the court packing campaign for its misguided approach to threatening both independence of the judiciary branch as well as liberalism.
Breyer is not the only liberal. Laurence Tribe (Harvard law professor) and Nancy Gertner (1968–1977) were both former federal judges who served on the Biden SCOTUS committee. The Washington PostThey jumped on the opportunity to praise court packing immediately after it was published. They write that “Handwringing about the legitimacy of the court misses the larger issue: The legitimacy of what is becoming our union.” We see this as a clear signal that something is wrong with the court. Even if that meant expanding its power to deal with what it’s become, we believe that that is an acceptable risk.
Keith Whittington (Princeton professor) countered, saying that “Judicial Independence is too important for a majority to sacrifice in order to gain a temporary political advantage.” Whittington also served as SCOTUS commissioner on the Biden SCOTUS Commission. Whittington wrote that “if a temporary, partisan majority added 3 new justices on the Supreme Court today” The Wall Street JournalAccording to the court, the party should “expect that the opposition party would do the exact same thing the next time it is in power.” This court could become more of a political tool for political minorities than it is a functioning independent government branch.
Whittington’s argument might resonate with Biden, as they echo Biden’s. Biden admitted that court packing was a common practice among Democratic activists during his 2020 presidential campaign. He also stated that the Supreme Court should not be turned into a political football. The winner of the most votes will get whatever they like.
It will be interesting to see if Biden is able or not to alter his mind.