Biden begins staffing commission to study Supreme Court reform

Joseph Choi
The Hill
Wed, 27 Jan 2021 03:21 UTC

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United States Supreme Court chambers

The Biden administration has begun setting up a commission aimed at Supreme Court reform and the federal judiciary, according to a Politico report. Sources close to the matter told the publication that nine to 15 people are expected to be appointed to the commission that will study court reform.

Those who are expected to be on the commission include Yale Law professor and Obama-era Deputy Assistant Attorney General Cristina Rodríguez and former American Constitution Society President Caroline Fredrickson. Harvard Law professor and former Bush-era Assistant Attorney General Jack Goldsmith has also reportedly been tapped to join the commission, according to the report. The commission will fall under the scope of the White House counsel's office, Politico reports, with assistance from Biden campaign lawyer Bob Bauer.

As Politico notes, Fredrickson has indicated in the past that she is in favor of court reform, saying in a 2019 interview, "I often point out to people who aren't lawyers that the Supreme Court is not defined as 'nine person body' in the Constitution, and it has changed size many times." Rodríguez's and Goldsmith's stances on court reform are less well-known than Fredrickson's, notes Politico.

In October, President Biden, then a candidate, said in a 60 Minutes interview that he planned on putting a commission together to address court reform, though he specified at the time that it would have nothing to do with the issue of "court packing," or adding judges to federal courts. Biden told interviewer Norah O'Donnell:

"If elected, what I will do is I'll put together a national commission of — bipartisan commission — of scholars, constitutional scholars. And I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it's getting out of whack, the way in which it's being handled. And it's not about 'court packing,' 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 topic of "court packing" arose after Justice Amy Coney Barrett was confirmed into the Supreme Court 30 days after she was nominated, leading to a 6-3 conservative majority. Her nomination became a point of contention between Democrats and Republicans as Barrett was confirmed one week before the presidential election.

Former President Obama's nominee, Merrick Garland, was denied a confirmation hearing by GOP Senate leaders at the time, citing an election that was 8 months away.

Comment: Biden's expert opinion? 'The court system is getting out of whack'. Who knows what that means! If discussions and debates follow the current Washington pattern, conclusions will skew to political advantage rather than non-partisan determination for the betterment of the judicial system and its service to the people.

FYI: Changes in the number of SC justices since inception:

Article III gives Congress the authority to set the number of Supreme Court justices. The court currently has one chief justice and eight associate justices, but the number has fluctuated since 1789.

• Originally, the total number of justices was set at six by the Judiciary Act of 1789. President George Washington signed the act into law on September 24, 1789, and he nominated John Jay to serve as the first Chief Justice of the Supreme Court of the United States.[4]

• The Judiciary Act of 1801 reduced the number of justices from six to five.[5]

• In 1807, Congress increased the number of justices on the Supreme Court to seven "in response to the geographic expansion of the nation and the increased caseload of the district courts in the west. The act established a Seventh Circuit, consisting of Ohio, Kentucky, and Tennessee, and specified that the new justice be assigned to preside over the U.S. circuit courts within that circuit."[6]

• The Eighth and Ninth Circuits Act of 1837 created the Eighth and Ninth Circuits to provide for an expanded caseload due to the admission of new states to the Union. This Act also rearranged the Seventh Circuit and created two new seats on the Supreme Court to support the circuit court.[7]

• The Tenth Circuit Act of 1863 created the Tenth Circuit to represent California and Oregon, eliminated the California Circuit Court and added another member to the Supreme Court. This act gave the Supreme Court its highest number of members in history, with the chief justice and nine associate justices serving.[8]

• The Judicial Circuits Act of 1866 reorganized the circuits in the thirty-six state nation, reducing the number of circuits from ten to nine. This reorganization created a basic structure of circuits lasting to present day. The Act also eliminated three positions on the Supreme Court.[9]

• The Judiciary Act of 1869 again increased the size of the Supreme Court, setting it at nine justices, one for each circuit.[10]