Progressives want to dilute the conservative majority on the Supreme Court by adding new judges. So far, all they’ve gotten is a commission.
On Friday, the Biden administration unveiled a new executive order creating a bipartisan group of legal experts to study Supreme Court reform. A press release announcing the initiative said the size of the court is on the agenda. So too are term limits.
But the move is unlikely to satisfy court-watchers seeking a more left-leaning bench. As historian Jill LePore wrote in The New Yorker last year, “government commissions…are alibis for inaction.”
Meanwhile, liberal activists have adopted the phrase, “Breyer, Retire” in an effort to get Justice Stephen Breyer to step down. The hope is the Clinton-appointee will make way for an ideologically compatible replacement selected by Biden. We Demand Justice, a progressive group, has dispatched a mobile billboard truck to DC with a photo of Breyer and the message, “It’s time for a black woman Supreme Court Justice. There’s no time to waste.”
White House press secretary Jen Psaki struck a different tone at her press briefing on Friday, saying Biden “believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court.”
Breyer is 82. He is the oldest justice by a decade.
Ruth Bader Ginsberg faced similar pressure during the Obama administration. When she passed away last fall, Donald Trump was president and Mitch McConnell was the majority leader. The two Republicans replaced her with conservative Amy Coney Barret. Barret’s rushed confirmation – she was approved just days before the 2020 presidential election – sent the movement to pack the court into overdrive.
Conservatives currently enjoy a 6-3 majority on the Supreme Court, but Biden and a Senate controlled by Democrats will be able to replace retirees or deceased justices for the foreseeable future. That can all change in 2022 if Republicans take the Senate majority back.
Biden has said he is “not a fan” of adding seats to the Supreme Court. Earlier this week, Breyer expressed a similar sentiment, saying expanding the number of justices would risk turning the court into “another political institution.”