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Biden to create bipartisan commission to study expanding the Supreme Court

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Watch the CBSN Originals documentary “Does the Supreme Court Need Reform?” It premieres on CBSN Sunday, April 11, at 8 p.m., 11 p.m. and 2 a.m. ET.


President Biden is signing an executive order on Friday to establish a commission to conduct a 180-day study on adding seats to the Supreme Court, as well as other potential reforms. 

The creation of the bipartisan commission, consisting of Supreme Court experts, fulfills of one of Mr. Biden’s key campaign promises to progressives.

“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,” the White house said in a statement. “The topics it will examine 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.”

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The White House said the commission will hold public meetings “to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining.”

The two co-chairs are are Bob Bauer, former Obama White House counsel and also one of Mr. Biden’s key advisers during his campaign and transition, and Cristina Rodriguez, a former deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice. There are 34 other members of the commission, including legal scholars, former federal judges, former government officials and experts who have appeared before the court.

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Progressive Democrats began pushing for Supreme Court reform during the Trump administration, after Mr. Trump appointed three justices to the court. One of those seats was filled by Neil Gorsuch, who was nominated after Republicans blocked former President Obama’s nominee, Merrick Garland, for nearly year. Amy Coney Barrett was confirmed to the court just days before the 2020 election, after the death of Justice Ruth Bader Ginsburg, giving conservatives a significant 6-3 majority.

Some progressives have argued that it’s necessary to make changes like adding seats to the court or implementing term limits to lend it some bipartisan balance and prevent one president from having too much power to shape its makeup. But critics have compared this to the failed court-packing scheme supported by President Franklin D. Roosevelt.

In a statement on Friday, Senate Minority Leader Mitch McConnell slammed the creation of the commission as “yet another sign of the Far Left’s influence over the Biden Administration.”

“This faux-academic study of a nonexistent problem fits squarely within liberals’ years-long campaign to politicize the Court, intimidate its members, and subvert its independence,” McConnell said. “This is not some new, serious, or sober pivot away from Democrats’ political attacks on the Court. It’s just an attempt to clothe those ongoing attacks in fake legitimacy. It’s disappointing that anyone, liberal or conservative, would lend credence to this attack by participating in the commission.”

The number of justices that sit on the Supreme Court isn’t written into the Constitution, and Congress has the power to change it — which it has done several times over the course of American history. The Judiciary Act of 1789 set the number of justices at six, and the total has ranged between five and 10 at various times before being set at nine in 1869, where it has remained ever since. 

Mr. Biden has refused to say whether he supports adding seats to the court, but promised to create a commission to examine the issue in an interview with “60 Minutes” in October.

“I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack,” he told CBS News’ Norah O’Donnell.

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