Discussions about court-packing dominated the second meeting of President Joe Biden’s commission tasked with studying reforms for the Supreme Court.
The sprawling, all-day hearing held on Wednesday featured testimony and questions from dozens of legal experts, touching on just about every major question about the court’s powers and proceedings. But above everything else, the commission focused on court expansion.
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In the wake of the 2020 presidential election, many Democrats dissatisfied with former President Donald Trump’s judicial appointments pushed Biden to rework the federal judicial system. In April, Biden appointed a bipartisan group of law professors and legal professionals to study possible tweaks to the judiciary.
At Wednesday’s hearing, Michael McConnell, a law professor at Stanford University and a former circuit court judge, commended Biden for forming the commission rather than unilaterally attacking the court system’s structure. But, McConnell added, he didn’t see any way a Supreme Court expansion would fix its problems. In fact, he said more justices on the bench would likely “seriously undermine” the court’s integrity.
Still, McConnell, along with several other experts testifying, said he supported 18-year term limits for justices, an idea that has gained some traction in recent years. But for some advocates of court expansion, this concession was not enough.
“Why settle for what the late Justice Ruth Bader Ginsburg might have called ‘skim milk democracy?’” asked Harvard law professor Laurence Tribe, arguing court expansion would make the court more democratic than term limits.
Tribe, one of Biden’s most high-profile commissioners, has toyed with the idea of court expansion before. In the wake of Justice Brett Kavanaugh’s heated confirmation battle in 2018, Tribe signed a letter calling for more Supreme Court justices after Trump left office. Tribe revisited the question during the Barrett confirmation and said he did not think nine justices were enough to make decisions for a country with more than 330 million people.
The commission also weighed questions about the court’s so-called shadow docket, meaning unargued cases in which justices issue orders that often carry major legal implications. Other questions included whether the court should continue to stream audio of its arguments after it returns to in-person sessions and whether they should allow cameras in the courtroom, a long-running debate in the courtroom.
The commission first met in May and was scheduled to meet six times over the next 180 days to produce a report without specific policy recommendations for Biden. Still, many Republicans warned the elevation of a court-packing conversation could fuel partisan efforts to expand the Supreme Court.
On Tuesday, 19 Republican governors sent a letter to Biden urging him to reject any court-packing recommendations. The letter — whose signees included Florida Gov. Ron DeSantis, Texas Gov. Greg Abbott, and Ohio Gov. Mike DeWine — called court expansion “unprecedented, unproductive, and unpredictable.”
“Legal scholars from across the country and on both sides of the political aisle agree that court-packing will breed perpetual court-packing — it will never be enough,” the letter said. “Each partisan shift will result in seats added to the Court until the Court has lost not only its independence but its authority. The end result of court-packing would lead to inconsistent rulings that undermine the legitimacy of the Court and fail to guide our nation and serve our states.”
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At the same time, many Democrats are anticipating a possible Supreme Court retirement announcement from the octogenarian Justice Stephen Breyer. But Breyer, who became the most senior liberal on the court this year, has led the court on a series of consequential decisions this term with no indication he plans to step down.
But if Breyer does choose to retire, and reignite smoldering debates about the Supreme Court in the process, he will likely make that announcement this week.
