Presidential Commission on the Supreme Court of the United States (2021)

On April 9, 2021, President Joe Biden (D) signed an executive order establishing the Presidential Commission on the Supreme Court of the United States.

The commission was tasked with evaluating the merits and legality of proposed changes to the Supreme Court's structure and operation, including the Supreme Court's constitutional role, the tenure of justices, the membership of the court, and selection methods and rules for cases. The commission was required to submit a report to Biden within 180 days of the group's first public meeting.

On December 7, the commission submitted its final report to Biden, which can be read here.

This page provides information about the following topics:

• Final report
• Membership of the commission
• Media coverage
• Text of the executive order

Final report

On December 7, 2021, the commission released its final report, which can be read below. Regarding its content, the report's executive summary says:

“

As would be expected, the Commissioners appointed by the President hold various and sometimes opposing views on the legal and policy issues raised in the Court reform debate, and disagreements are noted at various points in the analysis. The Executive Order does not call for the Commission to issue recommendations, but the Report does provide a critical appraisal of arguments in the reform debate.

”

Commissioner statements

Before the commission held a vote to approve the report, several commissioners made statements regarding the report and the alterations to the Supreme Court discussed in the report. Excerpts from some of those statements can be found below, and a full transcript of the meeting can be accessed here.

“	On the very narrow question before us, whether to approve the submission of the report to the President, I will vote yes. However, I do not support most of the proposals discussed in the report, particularly what is variously described as court packing or court expansion, and term limits. I take this opportunity to put my reasons before you. My reason is that in my view, each of these proposals, to some considerable degree, reduces judicial independence and, therefore, increases the likelihood that we will lose the freedom that judicial independence was, and is, designed to protect.	”
—David F. Levi, director of the Bolch Judicial Institute at Duke Law School

“	Some will be disappointed that there are no recommendations to this report. That there is not a consensus document. But that was not our charge. Our charge was to outline the arguments, to talk about the pros and cons, and the report ably does that. I will vote for it. [...] The Court has been effectively packed by one party, and will remain packed for years to come with serious consequences to our democracy. Whatever the costs of expansion in the short term, I believe will be more than counterbalanced by the real advantages it will bring to judicial independence, and to our democracy.	”
—Nancy Gertner, retired judge on the U.S. District Court for the District of Massachusetts

“	As the report makes clear, there was much disagreement among the Commissioners about the various proposals. For example, I am opposed to expanding the size of the court, limiting the terms of justices, and stripping the court of any of its current jurisdiction. The arguments against those proposals are set forth ably in the report. I approve the motion because the process that created the report, was an extraordinary effort that deserves commendation.	”
—Thomas B. Griffith, retired judge on the U.S. Court of Appeals for the District of Columbia Circuit

“	It turns out that some of the least controversial reforms, like term limits, would be among the most challenging to implement. And, some of the most controversial, like court expansion, would be the most straightforward as a legal and constitutional matter. One sign of how fair and productive our deliberations were, is that some of us started out leaning toward term limits, but against court expansion. And ended up doubtful about term limits, but in favor of expanding the court. And, of some narrower ways of improving its operations as well. I count myself among that number.	”
—Laurence Tribe, professor of constitutional law emeritus at Harvard University

Membership of the commission

The commission included 36 members appointed by Biden. The White House described the commission as "a bipartisan group of experts on the Court and the Court reform debate." The White House said of the group's expertise, "In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science."

Co-chairs of the commission

The commission had two co-chairs: Bob Bauer and Cristina Rodríguez.

Bauer was a professor of practice and co-director of the Legislative and Regulatory Process Clinic at NYU School of Law. He previously served in the Obama administration as White Houe counsel and the co-chair of the Presidential Commission on Election Administration in 2013. His areas of research included administrative law, constitutional law and theory, election law, and legal ethics.

Rodríguez was a professor of law at Yale Law School. Her areas of research included constitutional, immigration, and administrative law. She was a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice during the Obama administration.

Other members of the commission

• Michelle Adams, professor of law at Benjamin N. Cardozo School of Law
• Kate Andrias, professor of law at University of Michigan
• Jack M. Balkin, professor of law at Yale Law School
• William Baude, professor of law at University of Chicago Law School
• Elise Boddie, professor of law at Rutgers University
• Guy-Uriel E. Charles, professor of law at Duke Law School
• Andrew Manuel Crespo, professor of law at Harvard University
• Walter Dellinger, emeritus professor of law at Duke University and partner at O’Melveny & Myers
• Justin Driver, professor of law at Yale Law School
• Richard H. Fallon Jr., professor of law at Harvard Law School
• Caroline Fredrickson, former president of the American Constitution Society
• Heather Gerken, dean and professor of law at Yale Law School
• Nancy Gertner, retired judge on the U.S. District Court for the District of Massachusetts
• Jack Goldsmith, professor of law at Harvard Law School and senior fellow at the Hoover Institution
• Thomas B. Griffith, retired judge on the U.S. Court of Appeals for the District of Columbia Circuit
• Tara Leigh Grove, director of the Program in Constitutional Studies at the University of Alabama School of Law
• Bert I. Huang, professor of law at Columbia University
• Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense & Educational Fund
• Michael S. Kang, professor at Northwestern Pritzker School of Law
• Olatunde Johnson, professor of law at Columbia Law School
• Alison L. LaCroix, professor of law at the University of Chicago Law School
• Margaret H. Lemos, senior associate dean for faculty and research at Duke Law School
• David F. Levi, director of the Bolch Judicial Institute at Duke Law School
• Trevor Morrison, dean at NYU School of Law
• Caleb Nelson, professor of law at the University of Virginia School of Law
• Richard H. Pildes, professor of law at NYU School of Law
• Michael D. Ramsey, professor of law at the University of San Diego School of Law
• Kermit Roosevelt, professor of law at the University of Pennsylvania Carey Law School
• Bertrall Ross, professor of law at the University of California, Berkeley School of Law
• David Strauss, faculty director of the Supreme Court and Appellate Clinic at the University of Chicago
• Laurence Tribe, professor of constitutional law emeritus at Harvard University
• Adam White, resident scholar at the American Enterprise Institute
• Keith E. Whittington, professor politics at Princeton University
• Michael Waldman, president of the Brennan Center for Justice at NYU School of Law

Media coverage

This section includes commentary from journalists and analysts on the purpose, composition, and potential outcomes of the commission.

Composition of the commission

“	The commission will have an unwieldy 36 members, who tilt markedly to the political left. The co-chairs are Bob Bauer, Barack Obama’s former White House counsel, and Cristina Rodriguez, a former official in the Obama Justice Department. Mr. Bauer has argued publicly against court-packing, but he’ll have his hands full with the commission.	”
—The Editorial Board, The Wall Street Journal

“	The problem is not with these progressives on the commission. The problem is with all the progressives who are not. None of the people who have been out front on the issue of court reform are on the commission. Brian Fallon and Aaron Belkin, two people who founded organizations specifically around the idea of reforming the courts, are not part of this group.	”
—Elie Mystal, The Nation

“	A healthy fear of a Democratic majority could lead the Supreme Court to become less partisan. But Biden’s new commission sends the opposite message. With so many prominent members of the Federalist Society praising the commission right out the gate, it’s clear that conservatives do not feel threatened by this commission. And the justices themselves are just as capable of looking at the list of names that Biden picked and seeing that this commission is unlikely to support significant reforms.	”
—Ian Millhiser, Vox

Purpose of the commission

“	The commission, however, is likely to disappoint liberals who are looking for quick action to blunt the court’s conservative majority, while giving the president cover to avoid wading into the contentious debate. The members are not tasked with giving Biden specific recommendations but rather providing an analysis of a range of proposed changes to the court.	”
—Tyler Pager, The Washington Post

“	The White House announcement and the members chosen for this commission raise serious questions about its real purpose and concerns about its impact on the independence of the judiciary. The most obvious question is why the Supreme Court needs to be examined at all. The simple answer is that the left wants a judiciary in general, and a Supreme Court in particular, that is likely to decide cases that will further a leftist political agenda.	”
—Thomas Jipping, Heritage Foundation

Text of the executive order

The following section includes the text of the "Executive Order on the Establishment of the Presidential Commission on the Supreme Court of the United States," signed April 9, 2021.

“	By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: Section 1. Establishment. There is established the Presidential Commission on the Supreme Court of the United States (Commission). Sec. 2. Membership. (a) The Commission shall be composed of not more than 36 members appointed by the President. (b) Members of the Commission shall be distinguished constitutional scholars, retired members of the Federal judiciary, or other individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States (Supreme Court). (c) The President shall designate two members of the Commission to serve as Co-Chairs. Sec. 3. Functions. (a) The Commission shall produce a report for the President that includes the following: (i) An account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice and consent of the Senate, appoints Justices to the Supreme Court; (ii) The historical background of other periods in the Nation’s history when the Supreme Court’s role and the nominations and advice-and-consent process were subject to critical assessment and prompted proposals for reform; and (iii) 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. (b) The Commission shall solicit public comment, including other expert views, to ensure that its work is informed by a broad spectrum of ideas. (c) The Commission shall submit its report to the President within 180 days of the date of the Commission’s first public meeting. Sec. 4. Administration. (a) The Office of Administration within the Executive Office of the President shall provide funding and administrative support for the Commission to the extent permitted by law and within existing appropriations. To the extent permitted by law, including the Economy Act (31 U.S.C. 1535), and subject to the availability of appropriations, the General Services Administration shall provide administrative services, including facilities, staff, equipment, and other support services as may be necessary to carry out the objectives of the Commission. (b) Members of the Commission shall serve without compensation for their work on the Commission, but shall be allowed travel expenses, including per diem in lieu of subsistence, to the extent permitted by law for persons serving intermittently in the Government service (5 U.S.C. 5701-5707). (c) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (Act), may apply to the Commission, any functions of the President under the Act, except for those in section 6 of the Act, shall be performed by the Administrator of General Services. Sec. 5. Termination. The Commission shall terminate 30 days after it submits its report to the President. Sec. 6. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. JOSEPH R. BIDEN JR. THE WHITE HOUSE, April 9, 2021.	”
—President Joe Biden (D)

See also

• Joe Biden presidential administration
• Joe Biden's executive orders and actions
• Supreme Court of the United States

Footnotes

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