Two Conservative members of Biden's Supreme Court packing commission quit 1

Two Conservative members of Biden’s Supreme Court packing commission quit


President Biden’s bipartisan commission studying potential ways to change the Supreme Court lost two of its conservative members on Friday, even as it remained split on the idea of court packing. 


Caleb Nelson, a law professor at the University of Virginia who clerked for Justice Clarence Thomas, and Jack Goldsmith, a law professor at Harvard who worked in the George W. Bush administration, both resigned from the commission, the White House confirmed, but the pair did not give a reason. 

‘These two commissioners have chosen to bring their involvement to a close. We respect their decision and very much appreciate the significant contributions that they made during the last 5 months,’ White House spokesman Andrew Bates said in a statement, according to Bloomberg. 


The commission, which Biden put together in April, originally had 36 members.  It includes multiple legal scholars, lawyers and former government officials like judges. 

Caleb Nelson

Jack Goldsmith

Caleb Nelson, a law professor at the University of Virginia who clerked for Justice Clarence Thomas, and Jack Goldsmith, a law professor at Harvard who worked in the George W. Bush administration, both resigned from the court commission

On Friday the commission held its first public debate, where it expanded on matters touched on in a report released Thursday.  

Biden ordered the group to study a number of remedies after Democratic outcry over the conservative 6-3 majority on the high court, and demands to expand the bench. 


The commission, though split, seemed leery of the court packing idea in the report. 

‘Commissioners are divided on whether court expansion would be wise,’ the preliminary report read. ‘Court expansion is likely to undermine, rather than enhance, the Supreme Court’s legitimacy and its role in the constitutional system, and there are significant reasons to be skeptical that expansion would serve democratic values.’

However, the group said it ‘does not believe there is a formal legal obstacle to’ adding seats. 

At different points throughout the nation’s history, the court has expanded the number of seats, though the 9-justice bench has remained the same since 1869.


University of San Diego law professor Michael Ramsey said it was not clear whether lawmakers could ‘adjust the size of the court merely for the purpose of achieving particular partisan results,’ accprding to the Wall Street Journal. 

But more liberal members of the commission said Republicans had already broke precedent, pointing to how then-Sen. Majority Leader Mitch McConnell blocked President Obama from filling a vacancy in 2016, an election year, but pushed through President Trump’s appointment of Amy Coney Barrett just weeks before the election. 

Nancy Gertner, a former federal judge, said that Thursday’s report ‘ doesn’t talk about how unique this moment is for democracy, when one party apparently is seeking to remain in power for years and years to come through voting changes, and where the current Supreme Court, whether intentionally or unintentionally, whether in good faith or not, is enabling that.’ 

Harvard law professor Andrew Manuel Crespo also spoke out against Thursday’s report. He said the report was biased against expanding the bench rather than presenting the pros and cons of doing so. 


‘The arguments in favor of expansion are presented tentatively and at a distance in the voice of unnamed others. And in every instance they’re teed up, really, just to be knocked down,’ Crespo said. 

White House Press Secretary Jen Psaki said in her daily news briefing ahead of the report’s release that Biden would not be commenting on any findings until the final report on November 14. 


The power of the Supreme Court is laid out in Article 3 of the Constitution which reads: ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.’ 

It doesn’t mention a specific amount of justices, but the number hasn’t changed in 160 years. 


Any effort to alter it would be explosive, particularly at a moment when Congress is nearly evenly divided. Changing the number of justices would require congressional approval. 

Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. 

This Act created a Supreme Court with six justices. It also established the lower federal court system. 

The commission had warned that ‘rather than calm the controversy surrounding the Supreme Court, expansion could further degrade the confirmation process’ in the Senate. 


‘There could be significant battles over any Justice added by a Court expansion measure. Indeed, a future Senate could respond to expansion by refusing to confirm any nominee,’ it said. 

The report also warns of potential international ramifications if the US were to break a 150 year precedent.

‘Some Commissioners believe that there is a real risk that the willingness of Congress to expand the size of the US Supreme Court could further weaken national and international norms against tampering with independent judiciaries,’ it states.

‘Politicians at home and abroad who might wish to control their nation’s courts might find themselves emboldened to take such actions if the United States engages in Court expansion, regardless of the reasons for the US expansion.’


On the issue of term limits, the commission’s report seemed more friendly. 

The report said limits ‘may help strike a more appropriate balance’ between judicial independence and responsibility to the people. 

‘The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court Justices,’ the report notes.

It also notes the circumstances surrounding lifetime appointments have changed – for example increased lifespans over the centuries has led to longer and longer durations on the bench.


Since the 1970s, a four-year term in which a president doesn’t get a single opportunity to appoint a justice is becoming increasingly common.

‘Our current system allows parties to obtain and keep control over the Court to a degree disproportionate to their record of electoral success,’ the report states.

The commissioners put forward a proposition for 18-year terms. 

‘A system of term limits…would advance our Constitution’s commitments to checks and balances and popular sovereignty.


However in a subsequent section outlining arguments against term limits, the commissioners note that higher turnover could lead to less consistency in court doctrine.

The commission’s report also touched on the court’s controversial shadow docket process, by which the court issues summary judgments and rulings without oral arguments or a full briefing. 

The process has been used in decisions like approval of Donald Trump’s Remain In Mexico policy and allowing Texas’ restrictive abortion ban to go into effect.

The commission noted that ’emergency orders are, and will remain, a necessary component of the court’s work,’ but suggested solutions to create more transparency around the matter. 



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