Pres. Biden Issues Executive Order to Study Packing the Supreme Court (Sekulow Recap)


Jay Sekulow

April 12, 2021

4 min read

Supreme Court



Breaking News: By Executive Order, President Biden has created a new commission to study packing the Supreme Court.

On today’s Sekulow, we discussed President Joe Biden’s latest Executive Order, which he signed last Friday to put together a commission on the Supreme Court of the United States. And there is a lot involved in it. Talk about your words coming back to haunt you, when the President was Senator Biden back in 1983, he famously called attempting to pack the Supreme Court a “bonehead idea.”

At the time, Biden was referencing President Franklin D. Roosevelt’s failed scheme to pack the Court back in 1935 when older conservative justices weren’t retiring fast enough for FDR’s liking. Court packing literally refers to increasing the number of justices on the Supreme Court when things aren’t tipping in your favor. Adding more justices would most likely give the sitting President an advantage as he’d be picking all of the new nominations.

President Roosevelt suggested there should be 15 seats on the Supreme Court. Fortunately, at the time, his idea received bipartisan criticism, just as President Biden criticized in the ’80s. Now that he is President, however, he seems to have changed his mind when it comes to Court packing.

But as I stated on the broadcast, it’s important to note that while FDR ultimately pulled back his plan to expand the Supreme Court, some conservative justices began to side in favor of his New Deal legislation. Whether it was just a power play or not, in FDR’s case, it had the desired effect.

ACLJ Director of Policy Harry Hutchison summed up what might be the intent behind President Biden’s about-face regarding Court packing, as well as what could happen as a result:

I think it could be partially successful and I think it would have its most profound effect on [Chief Justice] John Roberts. Joe Biden essentially has surrendered to the Left’s venomous and vitriolic campaign to weaken the Court, to pave the way for the Left Wing’s agenda to be fully enforced throughout the United States. They see the Supreme Court as the chief obstacle to a progressive takeover of every single lever of power in the United States.

President Biden’s new commission will look into the number of justices, how they pick the cases they work on, and a host of other alarming issues. As stated in the Executive Order:

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.

As ACLJ Senior Counsel Andy Ekonomou explained, a President attempting to wield this sort of control over the Supreme Court threatens the very core of our Constitutional Republic:

That’s an alarming prospect as that’s not the business of the Executive Branch of government. We have three branches of government created by the Constitution that are separate and coequal and they are not to be interfered one with the other . . . when the Executive Branch of government purports to exercise examination into how the Supreme Court picks its cases, and the rules that are applied by the Supreme Court in choosing the cases that it’s going to hear, that’s a dangerous and scary precedent because it undermines the most important thing and that’s the independence of the judiciary.

As Andy also stated, “The Executive Branch needs to stay in its lane.” This is a blatant attempt by the Biden Administration and the Left to seize control of the Judicial Branch of Government and pull the strings of the U.S. Supreme Court. It should be no surprise to anyone that the ACLJ vehemently opposes this move, and our legal team will vigilantly monitor the proceedings of the President’s committee. And we will be prepared to act.

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The full broadcast is complete with much more analysis of President Biden’s latest Executive Order to expand the power of the Executive Branch.

Watch the full broadcast below.