By Todd Lassa

Perhaps more than any other policy issue that the Democratic Party’s progressive-left is pushing on a moderate White House, the 36-member bi-partisan commission announced in April to study structural changes to the U.S. Supreme Court seems foisted upon President Biden. Consider that he carefully backed away from questions during last year’s presidential campaign from committing to an expansion of the Court beyond its nine justices. At the time, the Democratic candidate repeated several times that he is “not a fan” of court-stacking.

Since then, two progressive, though senior, well-established congress members, Sen. Ed Markey, D-MA, and Rep. Jerry Nadler, D-NY, have introduced a bill to increase the SCOTUS bench to 13 justices. (It will go nowhere with the current Senate makeup.)

And why shouldn’t Biden stack the Court, from Democrats’ point of view? The last Supreme Court justice appointed by a Republican president who won the popular vote was George W. Bush’s choice, Samuel Alito, who took the bench in January 2006. The last Senate-approved Democratic appointee was Elena Kagan, who has served since August 2010, just 21 months into President Barack Obama’s first term. 

Since then, former Senate Majority Leader Mitch McConnell, R-KY, has blocked Obama’s choice of Merrick Garland to replace the late Justice Antony Scalia, and has pushed through Trump administration nominees Neil Gorsuch, Brett Kavanaugh and Amy Coney Barret, the latter of which took the bench replacing Ruth Bader Ginsberg against her dying wish, just one week before Donald Trump lost re-election. 

Now his party’s left wants Biden to push through an extra justice or four, as Franklin Delano Roosevelt had tried in his first term as president. While FDR’s attempt, though made possible by the Constitution, failed miserably, Democratic forces now have great fear that a.) Democrat’s tie-breaker-thin Senate control will disappear with the November 2022 mid-terms, and b.) the next chance it gets the Roberts court will overturn Roe vs. Wade, or at least enough of it to make it functionally useless, by 6-3 vote. 

One alternative would be for Justice Stephen Breyer, 82, to step down well before the mid-terms and give the Senate a chance to approve Biden’s nominee (as with Kagan, Breyer’s replacement would amount to a Democratic nominee for a Democratic nominee). Party leaders have been pressuring for that since Biden took office. 

Senate Republicans engaged the “nuclear option” and eliminated the filibuster for Supreme Court nominations in 2017, making it possible to confirm a nominee with only 51 votes (Senate Democrats eliminated the judicial filibuster for all but the top court in 2013).

Biden’s bi-partisan commission, announced April 9, consists of 36 legal scholars, former federal judges and practicing attorneys, according to The Washington Post. The president has given the commission 180 days to produce a report, which makes it due October 6, two days after the Supremes return from summer recess for the new court calendar. 

Theoretically, Breyer could bow to pressure and announce his retirement in time for a Biden nominee to matriculate through the confirmation process by early 2022, although it must be noted that there cannot be a nominee as liberal as Trump’s three nominees are conservative, if the White House wants to count on the votes of Democratic Sens. Joe Manchin III, of West Virginia, and Krysten Sinema, of Arizona, to assure a majority. 

More importantly, Biden has not charged the bi-partisan commission with the task of issuing recommendations, “but rather,” the Post reports, “providing an analysis of a range of proposed changes to the court.” There are no expectations that President Joe “not a fan” Biden might act on any proposals in time to add Supreme Court justices before the ’22 mid-terms.