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Apr. 14—It would be a mistake for Democrats to proceed with any effort that could change the size of the U.S. Supreme Court or limit the terms of its justices.
President Joe Biden has stated publicly, "I am not a fan of court packing," referring to the proposal to add seats to the Supreme Court, but last week he announced a bipartisan commission of legal scholars, former federal judges and attorneys to study a number of changes, including court expansion and term limits.
"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 practice," the White House said in a statement announcing the plan.
The commission has 180 days to compile its report.
Proponents argue that there is nothing in the Constitution to prevent adding more justices, and that the number of justices on the Supreme Court has changed many times in the past — at least six — but it is equally true that for most of this nation's history, it has been fixed. We have had nine judges since 1869, despite efforts to "pack" the court by President Franklin Delano Roosevelt. The concept got some traction again last year, after President Donald Trump successfully appointed his third justice to the court just before the November election. Some Democratic members of Congress are calling for the court's expansion even before the commission writes its report.
Any consideration of changing the size of the Supreme Court raises an obvious question: What happens when Republicans are back in control? Will they respond in kind?
Last week Justice Stephen Breyer warned against court expansion: "Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust."
Sen. Ben Sasse, R-Neb., a member of the Senate Judiciary Committee, has called Biden's commission a waste of time.
"President Biden knows that he doesn't even have the votes in his own party to pack the court; he knows that court packing is a nonstarter with the American people, and he knows that this commission's report is just going to be a taxpayer-funded door stopper."
Biden was evasive throughout the campaign on the question of expanding the court, although he acknowledged at one point the tit-for-tat that would cost the court credibility.
He needs to put this matter to rest once and for all, and announce there will be no effort to enlarge the court.