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On April 19, 2021, President Joe Biden formed the Presidential Commission on the Supreme Court of the United States through an executive order. The group, composed of 36 legal experts and scholars, has the task of researching and providing an analysis on current arguments regarding reforms of the Court; this includes possible expansion beyond the current nine justices. As described by a statement from the White House, “the Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”  About seven months later, on October 14, the commission released a draft of their report, which discussed how expanding the court would pose a significant risk and generate further politicization. 

History of Nine Justices

The size of the Supreme Court has not remained static since its creation as the United States Constitution does not mandate a specific number of justices to be present on the Court at all times. In fact, setting the number of justices that serve on the Supreme Court is fully within the power of Congress. 

This power has been exercised since George Washington and Congress first established the Court through the Judiciary Act of 1789. The Act set the Court at just six justices–two justices to represent each of the three circuit court regions. The number of justices remained the same  until John Adams’ presidency, during which he reduced the number of judges from six to five. Congress projected the opinions of the majority party, the “lame-duck” Federalists, onto the court in the Judiciary Act of 1801. This was done in an attempt to limit the power of Adams’ successor, Thomas Jefferson. Very quickly after this reduction, Jefferson changed the number of justices once again. Jefferson and Congress added one member to the court, for a total of seven justices in 1807. 

Seven justices remained serving for another thirty years, until the federal circuit courts were expanded by Andrew Jackson. With these smaller courts, the Supreme Court grew in 1837 to nine members. The number of Justices remained static for another nearly thirty years, until the beginning of the Civil War. As a result of the volatile political situation of the period, the size of the Court changed frequently. At the beginning of the war the number of justices rose to ten, then back down to seven, until the current number of justices was officially established at nine. Ulysses S. Grant set this prevailing number through the Judiciary Act of 1869, which was approved by Congress. 

This number of justices remained largely uncontested, with occasional discourse around possible expansion, for another hundred years. In 1937, Franklin D. Roosevelt proposed the Judicial Procedures Reform Act of 1937. This bill had the potential of increasing the Court’s size to fifteen members. Up to six additional nominations would have been granted to Roosevelt if the change had been approved. Ultimately, however, this proposal was rejected by Congress and the number of justices has remained the same all the way into the 21st century.

Results of the Commission

Just a day after the draft report was released, the Presidential Commission on the Supreme Court met in a nearly seven hour public forum to discuss their findings in the draft. The meeting focused primarily on the sections of the drafted report concerning the possible implications of Court expansion; this included research from both proponents of and against increasing the size. The overall opinion of the Commission, despite its lack of consensus from all members, is that expanding the Court has negative implications for legitimacy (represented by public faith in the court), judicial independence, and democracy.   

As a result of the negative implications discussed by the Commission, the group proposed to, rather than increase the number of justices, impose term limits or possibly stagger presidential appointments to the Court over time. The report states, “While there are many reasons to support term limits, their core purpose is to regularize the appointments process, making judicial appointments more predictable and the composition of the U.S. Supreme Court more rationally related to the outcome of democratic elections over time.” Ultimately, this commission offered critiques of all possible proposed alterations that could be made to the Supreme Court. They found that preserving its current state is best and that expansion should not be considered a viable option.

Expansion: Views of the Left

In recent years, political figures from the left have become increasingly more vocal about expanding the Supreme Court. This public discourse likely became more popular due to Donald Trump’s appointment of three young, conservative justices during his single term  as president. Based on their previous rulings and remarks, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett pose threats to the standing of landmark cases like Roe v. Wade, Obergefell v. Hodges, among others. All of these cases have significant implications for American citizens. 

The blocking of Barack Obama’s nomination to the Supreme Court, Merrick Garland, also heavily impacted public opinion on the left in regards to expansion of the court. Mitch McConnell, former Senate Majority Leader, blocked the appointment because of its occurrence during an election year. However, just a short time later, and in another election year, all of Donald Trump’s nominations were confirmed by the Senate, including McConnell. Now that the court has an overwhelming conservative majority of 6-3, the left is even more hopeful that expansion can bring balance 

It is because of this push for expansion of the Supreme Court that the left has been disappointed by the conclusions made by the Presidential Commission. Elie Mystal, justice correspondent for The Nation, commented, “When Biden was pressed on court reform, he sent it off to a commission to die. The commission was designed to do one thing: give Joe Biden and Senate Democrats cover for total inaction.” 

Many from the left have also been disappointed with the choices of the specific committee members. Despite the White House’s portrayal of being an equally bipartisan committee, some people from the left, like Dahlia Lithwick and Mark Joseph, both writers for Slate, feel that there is significant bias among the commissioners. They wrote, “[The commission] is stacked with people who have benefited from the current system, and who have much to lose by criticizing it too harshly. Perversely, it includes multiple conservatives who publicly oppose court expansion but not a single progressive who publicly supports it.”

Even members of the commission itself are wary of defining their report as purely against expansion. During the public forum held with the commission, Sherrilyn Ifill-President and Director of the NAACP Legal Defense and Educational Fund–said in her comments, “The way in which [the report] is framed leads to a conclusion that I think is not warranted by the arguments presented in the text, nor do I know it to be warranted by a collective decision of the commission, that expanding the court is unwise.”

Expansion: Views of the Right

Donald Trump’s Supreme Court appointees, as well as the blockage of Merrick Garland, hold a different meaning for people of the right. Not only do the conservative justices uphold an originalist view of the Constitution but they also pose no real threats to conservative ideology. In the Presidential Committee on the Supreme Court’s draft report, the introduction states, “Yet defenders of the current Court and its composition [believe that] the recent nominations reflect the result of electoral successes, and the changing doctrine represents a principled approach to constitutional interpretation.” Their contentment with the Court, as is, eliminates the need and call for expansion. Therefore, the commission’s stance of caution when it comes to making the court larger with additional justices aligns with the right’s perspective.

Regardless of this, many people on the right believe that the commission has accomplished little to nothing when it comes to possibly swaying public opinion or altering the court in any way. Byron York–chief political correspondent for the Washington Examiner and Fox News contributor–wrote, “Of course the Biden Commission has come up with a do-nothing report. That’s because nothing is not only the right thing to do, it is the only thing Democrats, with their current level of power in Washington, can do.”

Many right-wing conservatives also agree that the simple need for and existence of the Presidential Commission is a result of people on the left trying to regain power over the Supreme Court. This further corroborates opinion that the Court has become too politicized, as mentioned by the commission’s draft, and less of the neutral body it was intended to be. Dan McLaughlin–former attorney and senior writer at National Review Online–questioned, “So, how did Court-packing manage to get back on the agenda? Because Democrats saw their ideological advantage on the Court slipping away with the three justices appointed by Donald Trump.”

Implications

Ultimately, no matter the suggestions of the Presidential Commission on the Supreme Court, the choice of whether expansion should occur or not is in the hands of Congress alone. This group of legal experts and scholars plans to release their official report mid-November, which will likely present their finalized research and conclusions. It is unclear how large of an impact the report will have on President Joe Biden’s advocacy for Supreme Court expansion or public opinion as a whole.