Joe Biden is setting up a bipartisan commission to consider reforming the US Supreme Court, including expanding the bench beyond its current panel of nine justices.
The president on Friday fulfilled a campaign promise by issuing an executive order forming the commission of experts, including legal scholars, former federal judges, lawyers and reform advocates.
The White House said the purpose of the group was to “provide analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform”. The executive order directed the commission to issue a report on its findings within six months.
The commission marks a significant development for liberal advocates of expanding, or “packing”, the Supreme Court with additional judges, as well as those who want term limits imposed on justices.
The US Constitution gives Congress the authority to determine how to organise the court, though the size of the bench has been set at nine since the late 19th century. Under current rules, Supreme Court justices are appointed to the bench for life, unless they elect to retire.
Biden has not said in recent years whether he personally would support expanding the court or instituting term limits for justices, though he told CBS News last year that the court system was “getting out of whack”. Earlier in his career, Biden, a former chair of the Senate judiciary committee, opposed court packing.
Calls to expand the nation’s highest court grew louder last year after Donald Trump nominated conservative judge Amy Coney Barrett to the bench following the death of liberal justice Ruth Bader Ginsburg.
Barrett was confirmed by the US Senate just days before November’s presidential election. The move was decried by Democrats, given that then-Senate majority leader Mitch McConnell had blocked Barack Obama’s nomination of Merrick Garland to the bench months before the 2016 election.
Barrett was Trump’s third Supreme Court appointee, after Brett Kavanaugh and Neil Gorsuch, and her confirmation cemented conservatives’ grip on the court. Six of the nine current justices were appointed by Republican presidents.
Progressives have called on Stephen Breyer, who at 82 is the oldest justice to have been appointed by a Democratic president, to step aside in order for Biden to name a liberal successor and have that person confirmed by the Senate, which Democrats now control by the slimmest of margins.
When asked whether Breyer should resign, Jen Psaki, White House press secretary, on Friday said: “[The president] believes that is a decision Justice Breyer will make when he decides it is time to no longer serve on the Supreme Court.”
Breyer earlier this week warned against reforming the court for political reasons, in a livestreamed speech to Harvard Law School, saying: “I hope and expect that the court will retain its authority.”
“But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics,” Breyer added. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”