It was reported earlier his week by ConservativeBrief that a member of President Joe Biden’s commission to study changes to the Supreme Court has broken ranks and decided to express his concerns on the possibility of packing the court. The 34 member commission issued its report on its findings last week but it did not give an opinion on the subject of “court-packing.”
But one member, constitutional scholar Adam White, issued a statement that was published on the White House website warning against adding new members to the court
“Court-packing is anathema to constitutional government. While Congress is empowered by the Constitution to add seats to the Court, the history of Court expansion is one of admirable self-restraint by Congress. Over the nation’s first century, Congress largely set the Court’s size by reference to the judiciary’s genuine needs, particularly in terms of the justices’ old circuit-riding duties in a fast-growing continental republic. Since 1869, the Court’s size has remained stable, and for one and a half centuries the nine-justice bench has proved conducive to the justices’ work of deliberation, decision, and explanation,” he said.
“To pack the Court would impair the Court, not improve it: destabilizing it, further politicizing it, and complicating its basic work of hearing and deciding cases under the rule of law. And one needs a willing suspension of disbelief not to see that Court-packing would inaugurate an era of re-packing, destroying the Court’s function and character as a court of law,” he said.
Some Democrats have called for packing the court as it appears the conservative majority court is prepared to make changes to the Roe V Wade decision.
“A ‘conservative’ court would uphold precedent. But a ‘partisan’ court may not — and this may be the most partisan court in history,” California Democrat Rep. Adam Schiff said of the demands to pack the court. “We must protect a woman’s right to choose.”
Minnesota Democrat Sen. Tina Smith also called for packing the court.
“What’s happening today is the Supreme Court is hearing arguments for ending Roe and people’s freedom to get an abortion. I worked at Planned Parenthood and know what this would mean for women. If the Court takes this action, led by Republican justices, it’s impossible to argue they are not partisan,” she wrote, adding the hashtag “Expand The Court.”
Democrat Rep. Judy Chu from California urged Congress to pass the Judiciary Act, which would allow them to expand the number of judges to 13.
“Thanks to Republican court-packing, our Supreme Court has been manipulated to protect GOP political goals, not our Constitution. From bodily autonomy to voting rights, there’s only one solution: we need to pass the Judiciary Act to #ExpandTheCourt and restore fairness,” she wrote, also using the hashtag “Expand The Court.”
When Biden was campaigning to be president he said he opposed adding justices to the court but did start the commission in April to examine those, and other, changes.
The 34-member commission performed a 180-day study of potential changes to the Supreme Court, including court-packing and setting term limits for justices.
The final draft of the 288-page report didn’t offer specific recommendations, but rather provided a summary of arguments for and against critical issues ranging from court-packing to judicial term limits.
Notably, the commission took “no position” on court-packing, which is the liberal idea of adding justices to the Supreme Court.
“Given the size and nature of the Commission and the complexity of the issues addressed, individual members of the Commission would have written the Report with different emphases and approaches,” the report’s summary read. “But the Commission submits this Report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”
Regarding court-packing, the report said:
“No serious person, in either major political party, suggests court packing as a means of overturning disliked Supreme Court decisions, whether the decision in question is Roe v. Wade or Citizens United. Scholars could say, until very recently, that even as compared to other court reform efforts, ‘court-packing’ is especially out of bounds. This is part of the convention of judicial independence.”
“The commission takes no position on the validity or strength of these claims,” the report’s summary added. “Mirroring the broader public debate, there is profound disagreement among commissioners on these issues. We present the arguments in order to fulfill our charge to provide a complete account of the contemporary court reform debate.”
