On April 9, 2021, President Joseph R. Biden, Jr. signed an Executive Order establishing the Presidential Commission on the United States Supreme Court. Comprised largely of members of academia from law schools around the country, a White House press release stated, “[t]he 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.” Specifically on the agenda for the commission is to “. . .examine [topics] includ[ing] 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 practices.”
As it stands, the Court is currently composed of nine justices: Chief Justice John Roberts (a George W. Bush appointee); Associate Justice Clarence Thomas (a George H.W. Bush appointee); Associate Justice Stephen Breyer (a William J. Clinton appointee); Associate Justice Samuel Alito (a George W. Bush appointee); Associate Justice Sonia Sotomayor (a Barack H. Obama appointee); Associate Justice Elena Kagan (a Barack H. Obama appointee); Associate Justice Neil Gorsuch (a Donald J. Trump Appointee); Brett Kavanaugh (a Donald J. Trump appointee); and Amy Coney Barrett (a Donald J. Trump appointee). Justices are selected by the sitting President and must be approved by the Senate with a simple majority vote. In its current iteration, one-third of the court attained nominations and appointments in four years the Country was led by a President who lost the popular vote. After this turn of events, it should come as no surprise that the next President elected, especially one from the opposing political party, has launched an initiative to evaluate the efficacy of the Court and the prudence of leaving the institution unchanged.
The Court has not existed in its current form since the beginning of the Republic. Rather, the Court’s procedures, rules, and composition, have been established by the Constitution, Congress, and even the Court itself. Since the Constitution is silent on the issue in Article Three, Congress can select the number of justices on the Court. While the Constitution established that Supreme Court Justices (and other federal judges for that matter) “shall hold their Offices during good behavior,” i.e., lifetime appointments unless impeached, it was the Judiciary Act of 1869 which set the number of Justices at nine members as it still exists presently. At the time, the Act set the number of Justices based on the nine circuit courts (intermediate federal appellate courts). This change in the courts was done at this particular time to correct for the influence of former Confederate states and justices.
Today, there are 13 circuit courts, including the D.C. Circuit and Federal Circuit. Perhaps, as circuits increase so too should the Justices on the Supreme Court. This is particularly persuasive if one views the move to nine justices in 1869 within its proper historical context and considers a contemporary shift in the Court as one that could facilitate a less divisive and more representative Court trying to uphold the Constitution rather than particular ideologies. Substantively, the Court serves the purpose of hearing appeals from primarily the federal court system, with some famous exceptions coming from state court systems such as death penalty cases, and presiding over cases which can arise under its limited original jurisdiction (meaning no other court has to hear the case first).
Perhaps the most infamous example of the other two branches trying to shape or change the Court to fit their political agenda occurred under President Franklin D. Roosevelt. Roosevelt spearheaded a campaign to change the composition of the Supreme Court during the New Deal Era as the Great Depression devastated Americans. Briefly, FDR wanted a Court that was friendlier to New Deal Era legislation that aimed at alleviating the pain felt by Americans during the era that the Supreme Court had a propensity of striking down. As a result, FDR proposed changes to the courts that included, among other things, increasing the number of justices on the Supreme Court by appealing directly to the public in his famed fireside chats. In expressing his reasoning for the increase to the Court, the President decried how closely certain legislation meant to alleviate the Depression was surviving the Court’s review of constitutionality. FDR stated in reference to the legislation, “[b]ut when almost two years later, it came before the Supreme Court its constitutionality was upheld only by a five-to-four vote. The change of one vore would have thrown all the affairs of this great Nation back into hopeless chaos. In effect, four Justices ruled that the right under private contract to exact a pound of flesh was more sacred than the main objective of the Constitution to establish an enduring Nation.”
While perhaps a bit boring in mechanics and history, the Court is one of the three co-equal branches of Government. Wielding immense power, the Court has often been idealized as a haven for minorities through its interpretation of the law and review of a law’s status as Constitutional. However, the Court has had significant missteps throughout history, including deciding cases that maintained African-Americans were “property” (Dred Scott v. Stanford), allowed for separate but equal facilities for white and non-white Americans (Plessy v. Ferguson), and contended that World War II was sufficient justification for the forced relocation and internment of Japanese Americans (Korematsu v. United States). Even with these and many other missteps considered, the Court’s power and importance through its functions allowed it to reverse course and try to begin ridding the country of segregation (Brown v. Board of Education), require police to advise an arrested individual of their rights (Miranda v. Arizona), and force states to recognize the legal legitimacy of same-sex marriages (Obergefell v. Hodges).
The enormous strength of the Court in the law and as a force in American society comes to it in spite of the fact that, as Alexander Hamilton put it, “[t]he judiciary, on the contrary, has no influence over either the sword or the purse.” Rather, the Court maintains its status as co-equal with the other two branches because it adheres to the Constitution in its manifestation of the will of the people over any individual statute or law, Hamilton continued. This remains true today, and the Court relies on its appearance of co-equal status, public confidence, and the non-interference of its other two co-equal branches for its might.
President Biden’s Commission comes at a time where reform for the Court is popular amongst Americans. According to a Reuters-Ipsos poll, almost two-thirds of Americans support the imposition of term limits on Supreme Court Justices. However, the same poll found that just over one-third of people favor increasing the number of Justices. As it stands, the longest-serving member on the Court is Clarence Thomas. Thomas has been an associate justice for just shy of 30 years. The ability to serve on the nation’s highest court with the only check on one’s ability to remain on the Court a standard of “good behavior,” undeniably makes obtaining a position on the Court coveted and immensely empowering.
The power to appoint members of the Court, and the federal judiciary in general, is an integral part of a president’s legacy. During Thomas Jefferson’s presidency, he was famously infuriated when John Adams appointed perhaps the most influential Justice in the Court’s history two months before leaving office, John Marshall along with a slew of other judges that history has come to know as The Midnight Judges. To retaliate, he attempted to open up a seat on the Court by impeaching a sitting Justice Samuel Chase. The measure failed because it was perceived as largely political. However, as reported by the Washington Post, the anecdote raises the significant point that the Court has always faced political pressure and maneuvering to try and garner power for various political parties.
Our 21st Century political clashes over the Court are playing out as a result of a Court that is 6-3 in favor of more conservative ideology regarding its members. With the two other branches controlled by a different party in a two-party system and the Court’s immense power, it should come as little surprise that President Biden is taking the temperature on public support for a more favorable Court to his and his party’s policies. That being said, overtly political attempts to strong-arm the court and its composition have failed famously before, and President Biden faces a treacherous path toward the destination of changing without over politicizing and damaging confidence in the Supreme Court.
Christopher Becker is a civil litigator practicing in New York. Christopher graduated from the University of Alabama’s School of Law in 2016. There, he was a Senior Editor of the Civil Rights and Civil Liberties Law Review.