Biden to Name Commission on Court Expansion

Fulfilling a campaign promise and keeping the discussion alive.

Via the NYT: Biden Creating Commission to Study Expanding the Supreme Court.

In his executive order on Friday, the president will create a 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.

The panel will be led by Bob Bauer, who served as White House counsel for Mr. Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.

It will be a 180-day review.

I am certainly well aware that a commission such as this is often a way to seem to be doing something, without actually doing anything. But it is worth noting that it is also the kind of promise that could have easily been forgotten or postponed, so I am intrigued that Biden is following through in relatively quick order.

I have made my views known, which is that I am in favor of Court expansion because I would argue that other factors in our system have led to a substantial disequilibrium in the appointment of the Court itself. In simple terms is it profoundly problematic, from the viewpoint of basic representative democracy, that five of the six Justices that make up the Court’s conservative majority were appointed by presidents who came to office first (Bush 43) or exclusively (Trump) in contests wherein they lost the popular vote.

Put in even more simple terms: in over thirty years the Republicans have won the popular vote for president once (2004) and have been able to name 5 Justices in that time. There is something wrong with that picture, especially when one considers the profound power the Court has.

Further, the system already empowers a minoritarian institution (the Senate) in naming lifetime appointees. It is egregiously problematic that the Court is dominated by appointees from presidents who would not have been in office if they had had to at least get majority national support.

I lay this out in more detail in a post from last year, A Defense of Expanding the US Supreme Court.

For a differing view, see James Joyner’s post Against Packing the Supreme Court.

At any rate, the reality is that I do not expect Biden to pursue expansion, but am heartened that the discussion will continue, and at a level the will garner some public attention.

Update: Here’s the list of appointees. Looks like a quality group at first glance.

FILED UNDER: Democracy, Supreme Court, US Politics, , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter


  1. Jay L Gischer says:

    This seems like it might be a “let’s keep some attention on this and make sure it comes up in the news cycle” sort of maneuver. A way to press the case forward that’s not all-or-nothing.

  2. It’s worth noting that some of the changes that are being talked about would require a Constitutional Amendment. This includes any kind of term limits or efforts to place an age limit on Judges.

    The size of DC could be changed by law but I don’t see any realistic possibility that Coirt expansion would pass the Senate even if Democrats did nuke the filibuster.

  3. @Jay L Gischer:

    I think its Biden tossing a bone to the progressives. I don’t think it will result in any significant changes to the law.

  4. OzarkHillbilly says:

    Here’s the list of appointees. Looks like a quality group at first glance.

    36 people, seems a bit much if one actually wanted them to accomplish something.

  5. Scott F. says:

    @Doug Mataconis:

    I think its Biden tossing a bone to the progressives.

    Progressives like Steven Taylor?

    I agree, Doug, that changes in the law are unlikely considering the underlying political situation in the US. But, I hope you aren’t implying that what Steven is calling the ‘egregiously problematic’ make-up of the court should only be of concern to radical lefties.

  6. @Scott F.:

    I am talking about Biden and the progressive wing of the Democratic Party that are pushing these ideas

  7. Scott F. says:

    @Doug Mataconis:
    And I saying “kudos” to the progressives for pushing these ideas, but the problems with the current make-up of the court shouldn’t be characterized as unworthy of study by non-progressives. The problems are real and should be (and are) seen as deeply troublesome by many who care about representative democracy.

    Biden’s ‘throwing a bone’ to lovers of democracy. That the minority-rule fanboys of the GOP will be able to thwart any attempt to correct the problems with the SCOTUS certainly says more about the authoritarian bent of Republicanism than it does about progressive overreach from the Democrats.

  8. @OzarkHillbilly: I suppose that if he wanted to troll people he could have named a panel of nine.

  9. @Scott F.:

    Biden’s ‘throwing a bone’ to lovers of democracy.

    I think this is fair.