Biden starts staffing a commission on Supreme Court reform

By Tyler Pager

The Biden administration is moving forward with the creation of a bipartisan commission to study reforms to the Supreme Court and the federal judiciary.

The commission will be housed under the purview of the White House Counsel’s office and filled out with the behind-the-scenes help of the Biden campaign’s lawyer Bob Bauer, who will co-chair the commission. Its specific mandate is still being decided. But, in a signal that the commission is indeed moving ahead, some members have already been selected, according to multiple people familiar with the discussions.

Among those who will be on the commission are Cristina Rodríguez, a professor at Yale Law School and a former deputy assistant attorney general in the Obama Department of Justice, who will join Bauer as co-chair. Caroline Fredrickson, the former president of the American Constitution Society, and Jack Goldsmith, a Harvard Law School professor and a former assistant attorney general in the Bush Department of Justice, will also serve on the commission, those familiar with discussions said.

Fredrickson has hinted that she is intellectually supportive of ideas like court expansion. In 2019, she said in an interview with Eric Lesh, the executive director of the LGBT Bar Association and Foundation of Greater New York: “I often point out to people who aren’t lawyers that the Supreme Court is not defined as ‘nine person body’ in the Constitution, and it has changed size many times.”

Rodríguez’s opinions on court reforms are less clear. Goldsmith’s selection, meanwhile, is likely to be the one to frustrate progressives. A senior fellow at the Hoover Institution, Goldsmith did not support Trump and is a friend and co-author of Bauer. But he was a vocal advocate of Brett Kavanaugh’s appointment to the high court — an appointment that sparked Democratic advocacy for expanding the number of Supreme Court seats.

“He will also be an influential figure within the Supreme Court building,” Goldsmith wrote in 2018 about Kavanaugh in a Time article titled, “Brett Kavanaugh Will Right the Course of the Supreme Court.” “He is a brilliant analyst with a deep scholarly and practical knowledge of the law. His legal opinions are unusually accessible. He is a magnanimous soul.”

Bauer, who is not planning to go into the administration full-time, is himself a proponent of term limits for federal judges. He has been helping with the creation of the commission and, according to a person familiar with the deliberations, initially proposed the idea of forming a commission to study the issue of court reform.

“The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks,” a White House official said in a statement.

The recruitment of members is still ongoing, but a source familiar with the discussion expects between nine and 15 members total to be appointed to the commission. Rodríguez and Goldsmith did not respond to a request for comment, and Fredrickson declined to comment.

The idea for a commission came together amid the push by Republican senators to confirm Amy Coney Barrett to the Supreme Court in the weeks before the November election. Under intense pressure to consider reforms to the Supreme Court’s composition — including court expansion — Biden performed a classic Washington, D.C., punt. He announced in October that if he was elected, he would form such a commission to study structural changes. But Biden also conceded he is “not a fan of court packing.”

“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want,” Biden said in a “60 Minutes” interview in October. “Presidents come and go. Supreme Court justices stay for generations.”

Progressive groups pushing for court expansion responded with skepticism to Biden’s announcement at the time. And they’ve remained skeptical to this day.

“Commissions are often places where ideas go to die and there is no time on the clock to reform the court,” said Aaron Belkin, the director of Take Back the Court, a progressive group advocating for adding seats to the Supreme Court. “The entire agenda of what needs to get done is in jeopardy thanks to stolen federal courts.”

“We know,” he added, “that court expansion is the only strategy to allow the administration to solve the problems facing the country.”

An administration official said the commission is part of a broader court review and reform effort, part of which will focus on lower courts.

Progressives’ push to expand the Supreme Court was reenergized after Democrats won both Georgia Senate runoff races in January, giving them control of all three branches of government for the first time since 2010.

But any major structural reform would still be a heavy lift, as several Democratic senators have signaled their opposition to such measures. Senate Majority Leader Chuck Schumer said Monday he was waiting for Biden’s commission to decide a path forward on reforms to the Supreme Court.

“President Biden has put together this commission to come up with a report in 180 days,” he said in an MSNBC interview this week. “We’re going to see what the commission says and go from there.”