The Supreme Court reform debate was largely avoided by President Biden by outsourcing the issue to an expert study group. His time on the sideline may be coming to an end.
With a Supreme Court ruling on abortion expected this summer, and with Biden facing intense pressure from the left to take a bolder stance on reform of the court, he could soon find himself facing intense pressure from the left.
According to Samuel Moyn, a professor of jurisprudence and history at Yale University, the proposal that ranks as the current favorite among progressives involves expanding the court with additional members. If the justices curtail abortion access this term, calls for court expansion may grow too loud for Biden to ignore.
Moyn said that the growing support for court expansion may create a new political reality that Biden will have a hard time ignoring. Everyone knows that if the Supreme Court overrules the case, Biden's own party may force him to act.
Biden promised to establish a study commission when he was a candidate. The move succeeded in buying him political cover as the court shifted rightward amid what the party viewed as Republican duplicity.
In the closing days of the 2020 presidential election, debate over the Supreme Court reached a feverish pitch as Senate Republicans rushed to confirm Amy Coney Barrett, President Trump's third nominee.
The Democrats were angry when they were denied a hearing for President Obama's pick to replace Antonin Scalia in 2016 because Republicans claimed that election year confirmations are improper.
Biden made good on his campaign promise when he entered the White House, tapping a bipartisan group of some three dozen of the nation's foremost constitutional thinkers and court watchers. He was able to keep an arm's length distance from an issue that is a top priority for many liberals but has turned off some of his party's more moderate members.
The endeavor drew a mixed response when the Biden-appointed court commission published its nearly 300-page report in December.
The group did not advocate for a specific course of change, but instead focused on an accounting of pros and cons.
It was confirmation of their suspicions that Biden's commission was a political dodge. The commission's uninspired result was derided by organizations pushing for bolder reforms.
The Project On Government Oversight wrote that it was clear from the moment President Joe Biden failed to ask the commission for recommendations that the group was not intended to meaningfully confront the Supreme Court legitimacy crisis. The deliberations of the commission made it clear that it would only give Biden a book report.
Some of the commission's more progressive members felt it was important to make clear that their endorsement of the final report was not an embrace of the high court's status quo.
The commission's work, which included public hearings that drew attention to issues such as the court's perception among the public, may still deliver a shot in the arm for reform proponents.
Ryan Doerfler, a law professor at the University of Chicago, said that the commission's public deliberations increased pressure for reform by giving visibility to individuals speaking up in favor of reform.
The justices themselves are thought to be able to breathe new life into the court reform movement.
The justices are currently considering a number of hot-button issues, from church-state separation to the Second Amendment. There is a clash over a Mississippi law that directly challenges the Supreme Court's decision on abortion.
The decision to undermine or overturn the landmark 1973 decision in Roe that first recognized a constitutional right to abortion was the most important decision to make in the reform push, according to experts.
If the restriction does not pose an "undue burden" on abortion access, states may regulate abortion up to the point of fetal viability. Critics say that Mississippi's law banning abortion after 15 weeks of pregnancy is a clear-cut violation of the framework.
Many court watchers believe that the justices are about to set tighter limits on the right to abortion. Experts say that could put the court in Democrats' crosshairs just as Biden and Democratic leaders make their final pitch to voters in hopes of keeping control of Congress.
Scott Douglas Gerber, a law professor at Ohio Northern University, said that court packing will be a major issue in the upcoming elections.
The White House has repeatedly said that President Biden intends to run again in 2024, but political watchers point to the fact that Biden would be older than the president. When he was inaugurated in January, he was already the oldest person to do so.
President Biden said in an interview that he would support an exception to the Senate's filibuster rule when it comes to the election and campaign finance reform bill that passed the Democrat-controlled House earlier this year but hit a roadblock in the Senate.
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