President Joe Biden’s commission on the Supreme Court is stocked with legal professionals who have called for court expansion, term limits, and a host of other court reforms aimed at weakening former President Donald Trump’s judicial legacy.
The commission, which was announced Friday, is made up of 36 experts tasked with studying the history of court reform. That idea has become increasingly popular with Democrats since Trump’s three appointments to the high court created a solid conservative majority.
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Although putatively bipartisan, the commission is expected to produce a report that will fuel liberal demands for a judicial overhaul. Liberals outnumber conservatives by more than a 2-1 ratio, according to South Texas College law professor Josh Blackman. More than 80% are either graduates of or affiliated with Harvard or Yale. One of the group’s two co-chairs, Bob Bauer, has long sought to rework the federal court system.
Bauer is a longtime advocate for term limits on judges, writing in 2005, as Chief Justice John Roberts’s nomination battle played out, that the Supreme Court has become “isolated, imperious and opaque.” Bauer, who later served as White House counsel during the Obama administration, wrote at the time that the court is “undemocratic” because of the length of the justices terms, as well as their continued refusal to allow cameras into the courtroom.
The other co-chair, Cristina Rodriguez, is a former deputy assistant attorney general in the Obama Justice Department and holds less clear opinions on court reform. But a number of Biden’s other picks for the commission have been vocal, especially during Trump’s tenure, about their desire to swing judicial control away from Republican hands.
A former Clinton official, Caroline Fredrickson, now a Georgetown law professor, has in the past two years hinted that she supports court expansion.
“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,” she said in a 2019 interview while serving as president of the American Constitution Society.
Laurence Tribe, a Harvard law professor and frequent Trump critic, has also been a leading voice for diluting Republican inroads into the courts. Tribe, in 2019, was among a number of academics who signed the advocacy group Fix the Courts’ letter calling judicial term limits. Tribe, in the wake of Justice Brett Kavanaugh’s 2018 confirmation, threw his support behind the 1.20.21 Project, an initiative calling for more Supreme Court justices after Trump left office.
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“The time is overdue for a seriously considered plan of action by those of us who believe that McConnell Republicans, abetted by and abetting the Trump Movement, have prioritized the expansion of their own power over the safeguarding of American democracy and the protection of the most vulnerable among us,” Tribe said at the time.
During Justice Amy Coney Barrett’s confirmation, Tribe backed off his support for court expansion but said that he believed that nine justices might not be enough to make decisions for a country with more than 330 million people. Congressional Democrats have made similar arguments as they push for expanding the lower courts, an idea that gained steam after Trump scored a record number of appellate judicial nominations.
The commission, although it is not required to give Biden a recommendation on court expansion and makes some concessions to Republicans, met a frosty reception from conservatives, who said that it would normalize leftwing court reform talking points.
“Biden has recruited a bunch of moderate Republicans to put lipstick on the ideas of hardened radicals like Larry Tribe,” said Judicial Crisis Network President Carrie Severino. “But a pig with lipstick is still a pig.”
Biden himself has been ambiguous with regard to court expansion. The president has said the courts were “getting out of whack” under Trump but said that he was not in favor of adding more justices. Still, when confronted with the question at one of his debates with Trump, Biden dodged in his answer.
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“Whatever position I take on that, that will become the issue,” Biden said at the time. “The issue is the American people should speak.”
A Washington Examiner/YouGov poll taken after Justice Ruth Bader Ginsburg’s death last year found that nearly half of registered voters opposed expanding the court, while about a third were in favor.
