The White House announced Friday that President Joe Biden ordered a study on adding seats to the Supreme Court, making good on a campaign promise to study such topics as term limits on justices and expanding the court, amid pressure to address the court's ideological balance.


What You Need To Know

  • The White House announced Friday that President Joe Biden ordered a study on adding seats to the Supreme Court

  • In launching the review, Biden fulfilled a campaign pledge made amid pressure from activists and Democrats to realign the Supreme Court after its composition tilted sharply to the right during former President Donald Trump’s term

  • The 36-member Presidential Commission on the Supreme Court of the United States is a bipartisan panel comprised of legal scholars, former federal judges and practitioners who have argued before the Court, and judicial reform advocates

  • Biden has promised to appoint the first Black woman to the court; liberal activists have urged the court's oldest member, Justice Stephen Breyer, 82, to retire during Biden's term

"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 announcing the formation of the "Presidential Commission on the Supreme Court of the United States."

In launching the review, Biden fulfilled a campaign pledge made amid pressure from activists and Democrats to realign the Supreme Court after its composition tilted sharply to the right during former President Donald Trump’s term. Trump added three justices to the high court, including conservative Justice Amy Coney Barrett, who was confirmed to replace liberal Justice Ruth Bader Ginsburg just days before last year’s presidential election.

During the campaign, Biden repeatedly sidestepped questions on expanding the court. A former chair of the Senate Judiciary Committee, Biden has asserted that the system of judicial nominations is “getting out of whack,” but has not said if he supports adding seats or making other changes to the current system of lifetime appointments, such as imposing term limits.

The 36-member commission has been instructed to spend 180 days studying the issues, but it was not charged with making a recommendation under the White House order that created it.

The makeup of the Supreme Court, always a hot-button issue, ignited again in 2016 when Democrats declared that Republicans gained an unfair advantage by blocking Obama’s nomination of Judge Merrick Garland to fill the seat left empty by the death of conservative Justice Antonin Scalia. Then-Senate Majority Leader Mitch McConnell, a Republican, refused to even hold hearings on filling the vacancy, even though it was more than six months until the next presidential election.

In the wake of McConnell’s power play, some progressives have viewed adding seats to the court or setting term limits as a way to offset the influence of any one president on its makeup. Conservatives, in turn, have denounced such ideas as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.

Earlier this week, liberal justice Stephen Breyer, the court’s oldest member, warned liberal advocates of making big changes, including expanding the number of justices. Breyer said in a speech Tuesday that advocates should think “long and hard” about what they’re proposing. Politically driven change could diminish the trust Americans place in the court, Breyer said.

The size of the court has been set at nine members since just after the Civil War. Any effort to alter it would be explosive, particularly at a moment when Congress is nearly evenly divided. Changing the number of justices would require congressional approval.

Biden pledged to create the commission during an October television interview. Its launch comes amid speculation as to whether he will be able to put his own stamp on the court if Breyer retires at the end of the current term.

The 82-year-old Breyer is the oldest member of the court and the senior member of its three-justice liberal wing. A number of progressive groups have urged Breyer to retire while Democrats still control the Senate and the confirmation process.

Biden has promised to appoint the first Black woman to the court.

The commission is a bipartisan panel comprised of legal scholars, former federal judges and practitioners who have argued before the Court, and judicial reform advocates, including:

  • Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law and a former White House Counsel (co-chair)
  • Cristina Rodriguez, Yale Law School professor, former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice (co-chair)
  • Michelle Adams, Professor of Law at Benjamin N. Cardozo School of Law
  • Kate Andrias, Professor of Law at the University of Michigan
  • Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School
  • William Baude, Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School
  • Elise Boddie, Professor of Law and Judge Robert L. Carter Scholar at Rutgers University
  • Guy-Uriel E. Charles, the Edward and Ellen Schwarzman Professor of Law at Duke Law School, inaugural inaugural Charles J. Ogletree Jr. Professor of Law at Harvard Law School as of July 1, 2021
  • Andrew Manuel Crespo, Professor of Law at Harvard University
  • Walter Dellinger, Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers
  • Justin Driver, the Robert R. Slaughter Professor of Law at Yale Law School
  • Richard H. Fallon, Jr., Story Professor of Law (Chair of Harvard Law School)
  • Caroline Fredrickson, President of the American Constitution Society (2009-2019)
  • Heather Gerken, Dean and Sol & Lillian Goldman Professor of Law at Yale Law School and one of the country’s leading experts on constitutional law and election law
  • Nancy Gertner, United States District Court Judge (D. Mass.) from 1994-2011
  • Jack Goldsmith, Learned Hand Professor of Law at Harvard Law School, Senior Fellow at the Hoover Institution, co-founder of Lawfare
  • Thomas B. Griffith, U. S. Court of Appeals for the D. C. Circuit (2005 – 2020)
  • Tara Leigh Grove, the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law
  • Bert I. Huang, Michael I. Sovern Professor of Law at Columbia University
  • Sherrilyn Ifill, the President & Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc
  • Michael S. Kang, the William G. and Virginia K. Karnes Research Professor at Northwestern Pritzker School of Law and nationally recognized expert on campaign finance, voting rights, redistricting, judicial elections, and corporate governance
  • Olatunde Johnson, the Jerome B. Sherman Professor of Law at Columbia Law School 
  • Alison L. LaCroix, the Robert Newton Reid Professor of Law at the University of Chicago Law School
  • Maggie Lemos, the Robert G. Seaks LL.B. ’34 Professor of Law, Senior Associate Dean for Faculty and Research, and faculty co-advisor for the Bolch Judicial Institute at Duke Law School
  • David F. Levi, the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute at Duke Law School
  • Trevor Morrison, Dean of NYU School of Law
  • Caleb Nelson, the Emerson G. Spies Distinguished Professor of Law and the Caddell and Chapman Professor of Law at the University of Virginia School of Law
  • Professor Richard H. Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law and one of the country’s leading experts on the legal aspects of American democracy and government
  • Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law
  • Kermit Roosevelt, a professor of law at the University of Pennsylvania Carey Law School
  • Bertrall Ross, Chancellor’s Professor of Law at the University of California, Berkeley School of Law
  • David Strauss, the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic at the University of Chicago
  • Laurence Tribe, the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University
  • Adam White, resident scholar at the American Enterprise Institute and an assistant professor of law at George Mason University’s Antonin Scalia Law School
  • Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University, chair of Academic Freedom Alliance
  • Michael Waldman, president of the Brennan Center for Justice at NYU School of Law

The Associated Press contributed to this report.