Time to Pack the Courts? Biden Is (Finally) Gathering a Team to Find Out

During the election, President Biden was cagey when asked about his interest in packing the majority conservative Supreme Court; he repeatedly signaled that as president, he would devise a bipartisan committee to offer recommendations on how to reform the “out of whack” system. “[I]t’s not about court packing,” Biden said in October 2020. “There’s a number of other things that our constitutional scholars have debated and I’d looked to see what recommendations that commission might make.”

Well, it looks like that commission is getting into motion, and so-called court-packing isn’t out of the question.

The White House announced Friday that Biden will sign an executive order creating the “Presidential Commission on the Supreme Court of the United States.” It exactly mirrors the plan Biden laid out on the campaign trail: A group of legal scholars, former federal judges, and reform advocates of all political persuasions coming together and, in 180 days, analyzing whether the Supreme Court system could use an upgrade. Common sense says “uh, yeah,” especially given the Republican Party’s recent track record on obstructing and rushing through Supreme Court nominees, as well as the now ultra-conservative court’s complicity in right-wing voter suppression tactics.

The statement says that the group “will examine [topics that] include 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.”

But even if the commission recommends that we do away with lifetime appointments and add a few more justices to the bench, it’s difficult to imagine actual changes following. Any reforms that require a constitutional amendment—such as eliminating lifetime appointments—would require 2/3 support from the House and Senate and the backing of 3/4 of the states. In other words, it’s a nonstarter. And Biden could technically nominate five prospective Supreme Court justices right now if he wanted, but even if the (too powerful) conservative Democratic Senator Joe Manchin changed his mind and decided that he supports additions to the Supreme Court, Biden doesn’t really seem like the type of president to shake the table that much.

I hate to be cynical, since this commission could result in some interesting findings, and maybe—just maybe—both sides of the ideological spectrum could find common ground in some basic adjustments to an antiquated system. But this commission seems like a way to temporarily placate Democrats demanding big structural changes above all else.