US Supreme Court reform commission releases draft materials on membership, size of court
Photo credit: Stephanie Sundier
US Supreme Court reform commission releases draft materials on membership, size of court

US President Joe Biden’s commission to study proposed US Supreme Court reforms released draft materials Thursday addressing the membership and size of the court. 

President Biden established a 36-member commission to study US Supreme Court reforms through an executive order issued in April. The commission was created to focus on five topics, including “the genesis of the reform debate, the Court’s role in the Constitutional system, the length of service and turnover of justices on the Court, the membership and size of the Court, and the Court’s case selection, rules, and practices.” It met for the first time in May, which triggered the executive order’s requirement that the commission produce a report on its findings within 180 days of the first session.

The report, which was submitted within the executive order’s time limit, addressed calls to expand the court’s membership. It also noted the timeline of vacancies, which included recently those after the deaths of former Justices Scalia and Ginsburg, as well as the retirement of Justice Kennedy. The commission then discussed the historical size of the Supreme Court and court-packing efforts.

Following this discussion, the commission determined that Congress has broad power to structure the Supreme Court by expanding or contracting the number of justices. However, the commission was divided on whether it was prudential to expand the court. Some commissioners were concerned that expanding the court would undermine the court’s legitimacy and its role in the constitutional system.

The commission also examined other structural reforms. These included shifting or rotating justices from a larger set of Article III judges, utilizing panels of justices, and distributing partisan or ideological influence over the court’s composition. The commission noted that the first two potential reforms faced constitutional challenges under Article III, Section 1, which vests judicial power in one Supreme Court. The commission also stated that distributing influence over the court’s composition was “on a collision course” with the Constitution’s specification of how justices should be selected.

In a press briefing Thursday, Press Secretary Jen Psaki stated that these materials have not been submitted to the White House for edits or feedback. Following the release of the materials, there was a public meeting held on Friday. The commission will now form a final report and submit it to President Biden in mid-November.