Joe Biden's Supreme Court Commission Report Could Outline Path to Court Packing

President Joe Biden's commission established to study possible reforms to the Supreme Court will issue "draft preliminary discussion materials" on Thursday in what could be a major win for advocates of court packing.

The 36-person commission was established by the president amid criticism of the court from progressive Democrats and calls for new justices to be added due to the current 6-3 conservative majority.

Many Democrats were outraged when Senate Republicans refused to hold hearings for former President Barack Obama's Supreme Court nominee Merrick Garland in 2016 and what they viewed as a rushed confirmation for Associate Justice Amy Coney Barrett in 2020.

A group of Democratic lawmakers led by Senator Ed Markey of Massachusetts and Representative Jerry Nadler of New York introduced a bill earlier this year that would expand the number of justices from the current nine to 13.

The legislation is unlikely to succeed at present given the evenly divided Senate and reluctance on the part of many Democrats.

Biden has previously criticized the idea of adding justices to the court—a concept often referred to as court packing—but preliminary materials due from the presidential commission could potentially outline a path to expand the court as well as other possible reforms.

The decision to set up the commission was essentially a compromise with Democrats who want to see the court expanded and the commission's findings on that question are hotly anticipated.

White House Press Secretary Jen Psaki suggested at a briefing on Wednesday that the commission was examining a wider range of questions than just court packing.

When asked about the presidential commission, Psaki said "the commission will release the draft preliminary discussion materials tomorrow" and said they will meet their timeline.

"These have not been submitted to the White House for edits or feedback, and their release will be followed by a public meeting of the commission on Friday," Psaki said. "They will then form their final report and submit it to the president in mid-November. So that is the process that will transpire from here."

Psaki said Biden and the White House would not yet comment on the commission's work but the president would provide comment after he had reviewed the final report.

"If I may, let me just remind people of what they are looking at so that when you see these preliminary discussion materials released, you will know what you're looking for," Psaki went on.

"The Commission on Supreme Court is a group of about 30 members representing a wide spectrum of different viewpoints. Its mission was to evaluate a number of questions that have prompted calls for reform in a different—in a number of different areas, and, importantly, it will analyze both arguments in favor and against such proposals.

"So, the topics they're examining include the origins of the reform debate, the court's role in the constitutional system, the length of service and turnover of the justices on the court, the membership and size of the court, and the court's case-selection rules and practices," she said.

It is not yet known what the commission's materials will contain or what recommendations the panel might make. As the Supreme Court takes up important cases on topics like abortion restrictions and gun rights this term, the commission's ideas are likely to garner widespread attention.

If the commission comes out in favor of expansion, the court's critics will see that as a clear victory.

The solid conservative majority and recent decisions such as the court's refusal to grant a stay to a controversial six-week abortion ban in Texas mean calls to pack the court may continue regardless of the commission's recommendations.

Joe Biden Speaks at the White House
U.S. President Joe Biden speaks about supply chain bottlenecks in the East Room the White House October 13, 2021 in Washington, DC. Biden's commission on the Supreme Court will issue preliminary materials on Thursday. Drew Angerer/Getty Images