Republicans recoil over Biden’s plan to study Supreme Court reforms amid left-wing court packing push

Republicans in and out of the Senate are raising concerns about the Biden administration's commission to "study" the Supreme Court and propose potential "reform," worrying that the result might eventually be a proposal to pack the tribunal with more justices. 

President Biden during the campaign came under intense pressure from the left to commit to packing the Supreme Court if Republicans confirmed Justice Amy Coney Barrett. He said that he would tell Americans his position on the issue after the presidential election, but never did. Biden did say that he would put together a bipartisan group of scholars to study potential changes to the federal judiciary, an effort which appears to be getting underway. 

Politico reported Wednesday that the commission, which will be housed in the White House Counsel's office, has already brought on multiple people. They include former American Constitution Society President Caroline Fredrickson, who has said she is open to court packing in the past, and Jack Goldsmith, who is a former member of the Bush Justice Department and was a supporter of Justice Brett Kavanaugh's confirmation. The Biden administration declined to confirm the Politico report. 

"The President remains committed to an expert study of the role and debate over reform of the court and will have more to say in the coming weeks," a White House official told Fox News on Wednesday. 

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Since the campaign, Republicans have been suspicious that a Biden administration would eventually support legislation to pack the Supreme Court and suggested its latest move on the commission is a step toward doing just that. 

"Biden starts staffing a commission to pack the Supreme Court," Sen. Marco Rubio, R-Fla., said. "This is why we once again filed our constitutional amendment to keep this radical leftist idea from happening."

Added Sen Josh Hawley, R-Mo.: "Joe Biden says he wants unity but, just one week into his term, he’s already preparing a commission to study ‘court reform,’ which just means packing the Supreme Court to force through his liberal agenda."

"Despite repeatedly promising to tell us where he stands, Joe Biden is still playing coy on packing the court. Let’s be clear: packing the Supreme Court is outrageous and any attempt to do so must be resisted," Hawley continued. 

Fox News on Thursday asked the Biden administration if the president would commit that there will be nine seats on the Supreme Court ‒ the current number ‒ when he leaves office. 

The administration did not respond to the query. 

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The office of Senate Minority Leader Mitch McConnell, R-Ky., emphasized Thursday that packing the Supreme Court would only be possible if Democrats get rid of the legislative filibuster. The number of justices on the court is left up to Congress in the Constitution and could be changed by a bill passing both the Senate and the House, then being signed by the president. 

But with multiple Democrats opposed to getting rid of the filibuster, it would take at least 10 Senate Republicans to support adding a Supreme Court seat, something that almost certainly will not happen. 

McConnell's office also pointed to remarks he made in October in which he warned that farther-left elements of the Democratic Party may have led to Biden changing his mind on court packing. 

"It is bizarre to watch [former] Vice President Biden and other Democrats refuse to give a straight answer on their own party’s threats to pack the Supreme Court," McConnell said then. 

"The only reason to duck, dodge, and obfuscate if the far left is now calling the shots," he added. "The only reason for this abuse of language is to set up an abuse of power."

Republicans outside of the Senate also expressed concern that the president may be laying the groundwork to eventually pack the Supreme Court. 

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"Well, that didn't take long," Rep. Ken Buck, R-Colo., said Wednesday. "President Biden is already organizing a commission on Supreme Court 'reforms' (read: Court-packing)." 

Buck is reportedly considering a challenge to Sen. Michael Bennet, D-Colo., in 2022. 

Carrie Severino, the Judicial Crisis Network president and former clerk to Justice Clarence Thomas, slammed the commission as well. 

"I agree with the late Justice Ginsburg that court packing is a bad idea—both for the Court and the country. And for decades President Biden agreed too," she said. "But now it seems that President Biden is willing to turn the Supreme Court into a political tool to appease the radical left. This 'Commission on Supreme Court Reform' is a sham."

"The Supreme Court has had 9 seats since 1869, right after the Civil War more than 150 years ago," added Mike Davis, the president of the Article III Project, which boosted conservative judicial nominees during the Trump administration. Davis previously worked for Sen. Chuck Grassley, R-Iowa, when he was the chairman of the Senate Judiciary Committee.

"Any attempt to pack the Supreme Court is a radical assault on judicial independence and a grave danger to our rights," he said.

As many Democrats urge Biden and moderates in the Senate to support ending the filibuster, it's likely that the Supreme Court issue will come to the forefront of that discussion. That could be especially true when the new 6-3 GOP-appointed majority Supreme Court begins releasing opinions on more substantive issues. 

On Wednesday, eight progressive organizations banded together to form the "Unrig the Courts" coalition to pressure Democrats to use their power to act. Their four demands are expanding the number of justices on the Supreme Court, expanding lower federal courts, enacting term limits for Supreme Court justices and improving ethics and transparency requirements for justices.

"The Supreme Court has become too partisan and too political, and with a united Democratic government, the time to act is now," Demand Justice executive director Brian Fallon said in a statement Wednesday. "The 6-3 Republican-appointed majority consistently sides with Republican politicians and corporate interests over the American people, and we must act before they rig the rules of our democracy even further."

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Biden has previously said he is "not a fan" of court packing and that it is a "bonehead idea." During a campaign event in 2019, in a video posted by Fallon, Biden said that "if we pack the courts, it's going to come back and eat us alive."

During an interview with CBS News' "60 Minutes" in October, Biden laid out his vision for the commission and for "alternatives" to packing.

"If elected, what I will do is I'll put together a national commission, a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberals, conservatives," Biden said. "I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it's getting out of whack."

Besides adding Supreme Court seats, some on the left have floated other ideas, most significantly implementing term limits on Supreme Court justices, as ways to reform the Supreme Court. That, however, would require a constitutional amendment. 

"I will be re-introducing my legislation with @RepDonBeyer to implement term limits on Supreme Court Justices," Rep. Ro Khanna, D-Calif., said in a tweet. "We can’t have a national crisis every time there’s a vacancy."

Sen. Sheldon Whitehouse, D-R.I., meanwhile, has lobbied for changes to rules on "dark money" in judicial selection, and told Fox News Thursday that he hopes the Biden commission pays attention to that issue. 

"I’ve supported this idea for a while now," Whitehouse said of Bidens commission. "Donald Trump handed control of Americans’ judiciary to big special interest donors who stocked the bench with judges they believe will rule reliably in their favor.  We need a thorough assessment of how deep that rot goes, from the procedural violence inflicted on our judicial nominating process to the dark money scheme behind the scenes.  Any reform effort that ignores dark money is predestined to fail."

Fox News' Marisa Schultz and Evie Fordham contributed to this report.