Biden Supreme Court Commission Deeply Divided on Court-Packing, it Says in Final Report

President Biden’s Supreme Court commission noted “profound disagreement” among its 34 members on the issue of court-packing in its final report Monday while acknowledging that adding seats to the high court is “well within” the power of Congress.

Biden formed the commission in April after multiple Democrats and liberal groups urged him to back “court-packing,” which would expand the court beyond its current membership of nine seats. The commission’s final report is 288 pages.

“The Commission as a whole takes no position on the validity or strength of these claims. Mirroring the broader public debate, there is profound disagreement among Commissioners on this issue,” the report says.

Even though the commission took no position on court-packing, the report explains – in detail – the arguments for and against the idea.

“The current calls to expand the size of the Court stem most immediately from the Senate’s refusal to act on President Obama’s nomination of Judge Garland to the Supreme Court, as well as its confirmation of the three Justices nominated by President Trump – and the effect those norm violations may have on both the health of the democratic process and the scope of bedrock constitutional rights,” the report says.

Supporters of court-packing, the report says, view expansion as “particularly justified in light of Senate Republicans’ handling of the election-year nominations of Judge Garland and Justice Barrett.”

“When Justice Scalia died unexpectedly on February 13, 2016, 269 days – more than 38 weeks – before the 2016 presidential election, the Senate held neither a hearing nor a vote on President Obama’s nomination of Judge Garland,” the report says. “Yet when Justice Ginsburg died only 46 days before the election of 2020, Republicans quickly confirmed President Trump’s nomination of Justice Barrett to fill the seat.”

Supporters of expanding the Supreme Court, the report says, are concerned that a conservative Supreme Court will “revise longstanding precedents in the areas of reproductive rights, racial justice, workers’ rights, the regulation of guns, religion, administrative law, voting rights, and campaign finance law.” “Reproductive rights” is a left-leaning phrase that encompasses abortion.

The U.S. Constitution, the report notes, does not require a specific number of judges. Thus, court-packing would be “well within Congress’s formal discretion.”

But the report also lists the arguments against court-packing, noting that opponents “believe efforts to expand the Court or otherwise alter its structure at this moment would threaten the independence of the Court.”

“Critics of Court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add Justices to bring the Court more into line with their ideological stances or partisan political aims,” the report says. “Court-packing, in the critics’ view, would compromise the Court’s long-term capacity to perform its essential role of policing the excesses of the other branches and protecting individual rights.”

Court-packing, these critics say, “would not address the Court’s power to resolve questions better left to the political process.”

Related:

Biden Supreme Court Commission Says Congress Has’ Broad Power’ to Pack Court 

Biden Creates’ Court-Packing Commission’ to Study Supreme Court Reform

Biden now ‘Open’ to Court-Packing: ‘It Depends on How’ Senate Handles Barrett Nomination

Photo courtesy: ©William Murphy/Pixabay

Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.

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