President Joe Biden’s commission tasked with studying potential changes to the structure and size of the Supreme Court held its first meeting on Wednesday, where leaders announced how they will handle questions about court expansion.
The commission, a panel of 36 legal experts co-led by Obama alumni Bob Bauer and Cristina Rodriguez, met in a 20-minute public session in which it laid out a road map for a raft of reform proposals. These include studying the scope of judicial review, calls for term limits or mandatory retirements, and the controversial subject of court-packing.
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The commission will meet five more times over the next 180 days and produce a report without any specific policy recommendations for Biden. The president announced his intention to create the commission on the 2020 campaign trail, while at the same time saying that he was “not a fan” of court-packing.
When studying that issue, Nancy Gertner, a former federal judge and a professor at Harvard Law School, said that the commission will look at court expansion broadly.
“We plan to look at not only current proposals but also proposals about membership and size that have been floated at other times in American history,” she said, adding that the group will consider how court expansion ploys from the founding to the present should inform its thinking.
“What do these proposals teach about what we should be doing at this time?” she asked. “And then, we’ll look at current proposals to expand the membership and size of the Supreme Court and whether those proposals require other reforms.”
Gertner said that by looking at court expansion, the commission by necessity will also consider ways that a bigger Supreme Court will be functionally altered. This could involve changes such as major cases being heard by smaller panels of judges, as most cases are heard at the appellate level. Expanding the court could also affect the way the term limits question is handled, Gertner said.
The commission will also consider a study of the court’s so-called shadow docket, cases in which the court gives orders without hearing arguments, said Kate Andrias, the commission’s rapporteur and a law professor at the University of Michigan.
The commission met in the wake of a series of Democratic pushes to expand the Supreme Court. A group of Democrats in the House and Senate last month introduced legislation to expand the court by four seats. House Speaker Nancy Pelosi quickly shut down the effort, saying that she had “no plans” to bring the bill to a vote.
Republicans have accused Democrats of using the commission to mainstream radical ideas about the judicial branch. On Wednesday, Texas Sen. Ted Cruz denounced the group after its meeting, saying in a statement that Biden was using it as “political cover” to add activist judges to the court.
“I urge commission members to stand up and defend the independence of the Supreme Court and prevent the court from being used as a partisan weapon,” Cruz said.
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Still, the commission’s noncommittal nature has also angered some liberal activists. Brian Fallon, president of the group Demand Justice, said before the commission met that its work was not enough to overcome the challenges Democrats face with a conservative-dominated court.
“Will Democrats recognize the storm clouds that are gathering, or will they continue to dither and allow themselves to get soaked before ever reaching for an umbrella?” he said in a statement. “We do not have 180 days to squander on a faculty-lounge discussion to tell us what we already know: The Supreme Court is a looming threat to our democracy and in urgent need of reform.”
