Since 1869, the Supreme Court has had nine justices. Over the past 152 years, only one attempt has been made to change that number. The attempt by President Franklin Roosevelt in 1937 drew scathing criticism from both sides of the aisle as his “court-packing” effort was viewed as a threat to the independence of the judiciary. A Senate Judiciary Committee report at the time said that such an attempt “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” Roosevelt’s effort eventually failed after a bitter 168-day battle.
The Biden administration recently signaled its intention to achieve what Roosevelt could not. If the Supreme Court and federal judges across the country won’t bend to the will of the Biden administration, then President Joe Biden will simply create new judicial vacancies and fill them with cronies who will.
Through an executive order signed on a Friday afternoon, Biden announced the creation of a 36-member commission tasked to produce a report analyzing “the role and operation of the Supreme Court,” including its “membership and size,” as well as the “legality of particular reform proposals.” Such potential reforms could lead to an increase in the number of justices and an end to lifetime appointments.
Lifetime appointments in the federal judiciary are understood by many to be essential to maintaining the judiciary’s independence, as they can insulate judges from the influence and pressure of partisan politics. The Founding Fathers believed this to be so, codifying the lifetime tenure requirement into Article III of the Constitution. Biden would be well served by reading Federalist No. 78, authored by Alexander Hamilton, to appreciate and understand the importance of lifetime tenure, as it is essential to promoting the “independent spirit in judges which must be essential to the faithful performance of so arduous a duty.”
The creation of Biden’s new commission is something he promised while on the campaign trail last October. Unfortunately for our country and the democratic principles upon which it was built, including separation of powers, Biden has now delivered on that promise.
According to a White House statement accompanying the announcement, the “bipartisan” commission will be co-led by two long-term Democratic Party operatives: Bob Bauer, White House counsel to former President Barack Obama and a top Biden campaign adviser, and Cristina Rodriguez, a former Justice Department official and current law professor who served as a member of the Biden-Harris transition team. The commission will last 180-days and hold several public hearings as it gathers information for its report.
Two concerning areas of focus are absent from the media headlines applauding Biden’s decision.
First, the statement accompanying the order makes clear that its mandate extends to review not only the Supreme Court but also the entire federal judiciary. This would include judges throughout the nation in both district and appellate courts.
Second, the order comes just two days after liberal advocates sent a letter to Democratic Sens. Chuck Schumer and Bernie Sanders calling for Congress to use the reconciliation rules to add 250 seats to federal district and circuit courts across the nation. Under those rules, Democrats could push the measure through with only 51 votes in the Senate, rather than the 60 votes typically needed.
The result would be to expand the number of federal and district court judges dramatically across the nation. If Biden packs the federal district courts with party loyalists, then the composition of the Supreme Court becomes less important.
This shrewd tactic gives Biden and liberal activists an opportunity to undermine the legacy of the Trump administration with one fell swoop.
In the eyes of many conservatives, the greatest achievements of former President Donald Trump, and arguably his administration’s most lasting impact, are the hundreds of federal judges he appointed. In Trump’s single term, he managed to get 234 Article III judges confirmed by the Senate, according to the Pew Research Center. Trump was able to appoint 54 federal appellate judges, only one less than Obama, who served twice as long. As of January 2021, approximately 28% of all active federal judges are Trump appointees.
By creating this commission, the Biden administration is laying the groundwork for what could become Biden’s crowning achievement: the destruction of the independent judiciary. As Biden takes aim at America’s judiciary, let’s hope he misses.
Chase Martin is the legal affairs director at the Foundation for Government Accountability. Stewart Whitson is the legal affairs fellow at the Foundation for Government Accountability.