President Joe Biden’s 36-member Supreme Court commission is “divided” on the issue of whether to expand the number of justices, according to materials prepared for a Friday discussion on reforming the nation’s highest court.
The revelation could give new fuel to Democratic calls for packing the court, which is now considered conservative by a 6-3 margin. Calls for the party to add seats and fill them with liberal-leaning justices intensified during the Trump administration, when three conservative justices were added, including Amy Coney Barrett, who was confirmed to replace liberal icon Ruth Bader Ginsburg last fall.
“As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices,” a readout of the commission’s draft discussion materials stated. “The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise.”
The White House released the draft discussion materials Thursday evening, ahead of deliberations by the commission during a virtual hearing scheduled for Friday. The commission plans to submit a final report to the president in mid-November, according to White House press secretary Jen Psaki.
“These have not been submitted to the White House for edits or feedback,” Psaki said Wednesday. “We’re not going to comment on it — or the president wouldn’t comment on it — until a report is final and he has the chance to review it.”
Psaki noted the materials released Thursday are an “assessment” and “not a recommendation.”
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The commission is comprised of 36 law professors, constitutional scholars, and former judges who were assigned to study a slew of proposed reforms to the high court.
In April, Democrat lawmakers introduced legislation to expand the court to 13 justices. While powerful party officials, including Senate Majority Leader Chuck Schumer, have advocated for court expansion, it is not clear if Democrats have enough votes. Biden has not said whether he supports the idea in recent months, but he criticized it years ago.
While Biden was a senator representing Delaware in 1983, he spoke out against a proposal by then-President Ronald Reagan involving the U.S. Commission on Civil Rights, comparing it to President Franklin Roosevelt’s famous 1937 bid to expand the Supreme Court by six justices.
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“President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court,” Biden said. “It was totally within his right to do that. He violated no law. He was legalistically, absolutely correct. But it was a bonehead idea. It was a terrible, terrible mistake to make. And it put in question, if for an entire decade, the independence of the most significant body … in this country, the Supreme Court of the United States of America.”
The last time Congress altered the number of justices to the Supreme Court was in 1869 when the number was adjusted to nine. Before that, Congress routinely altered the number of justices to achieve political goals, going from as few as five justices under John Adams to as many as 10 under Abraham Lincoln.
