Will Biden’s Supreme Court Reform Commission Violate Separation of Powers?


There are strong indications that the United States will bring the Supreme Court under the control of the President, a seeming violation of the principle of separation of powers.

President Joe Biden signed an executive order Friday establishing a bipartisan commission to reform the Supreme Court.

The White House announced that the commission will examine Court’s case selection, rules, and practices. It will also examine the size of the court and the lifetime appointment, among other things.

What is the Commission’s purpose? the White House said in a statement that the “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.

“The topics it will examine include 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.”

The White House

The executive order directs the commission to complete its report within 180 days of its first public meeting.

Biden was reluctant during his campaign to embrace the idea of court expansion despite pressure from Democrats after then-President Donald Trump’s decision to quickly fill the Supreme Court vacancy left by the death of Justice Ruth Bader Ginsburg on election year.

Composition of the nine-member court, which they said is 6-3 conservative majority, greatly incensed Liberal advocates and they vowed to pack the Court when they get power.

They believe an expanded Supreme Court would give Biden a real chance to implement all his legislative agenda, regardless of conservative legal challenges.

The 36-member commission will be co-chaired by former White House counsel Bob Bauer and former Deputy Assistant Attorney General Cristina Rodríguez. Its other members include legal and other scholars as well as former federal judges and practitioners who have appeared before the court, advocates for the reform of democratic institutions and of the administration of justice, and experts on constitutional law, history and political science.

Justice Stephen Breyer, one of the court’s three liberals, warned in a speech against an expansion of the Supreme Court. In a speech at Harvard Law School, Breyer said the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

“Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust,” Breyer said.

In the unlikely event that the President successfully brings the Court under executive control, opposition from Republicans will be weakened.