The revelation could give new fuel to Democratic calls for packing the court, which is now considered conservative by a 6-3 margin. Calls for the party to add seats and fill them with liberal-leaning justices intensified during the Trump administration, when three conservative justices were added, including Amy Coney Barrett , who was confirmed to replace liberal icon Ruth Bader Ginsburg this past fall.
"As a legal matter, we conclude that Congress has broad power to structure the Supreme Court by expanding (or contracting) the number of Justices," a readout of the commission's draft discussion materials noted. "The prudential question is more difficult, and Commissioners are divided on whether Court expansion would be wise."
The White House released the draft discussion materials Thursday evening, ahead of deliberations by the commission during a virtual hearing scheduled for Friday. According to White House press secretary Jen Psaki , the commission plans to submit a final report to the president in mid-November.
"These have not been submitted to the White House for edits or feedback," Psaki claimed. "We’re not going to comment on it — or the president wouldn’t comment on it — until a report is final and he has the chance to review it."
Psaki insisted the materials released Thursday are an "assessment" and "not a recommendation."
The commission is composed of 36 law professors, constitutional scholars, and former judges who were assigned to study a handful of proposed reforms to the high court.
In April, Democrat lawmakers introduced legislation to expand the court to 13 justices. While powerful party officials, including Senate Majority Leader Chuck Schumer, have advocated for court expansion, it is unclear whether Democrats have enough votes. Biden has not confirmed if he supports the idea now, but he criticized it years ago.
"President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the court," Biden said. "It was totally within his right to do that. He violated no law. He was legalistically, absolutely correct. But it was a bonehead idea. It was a terrible, terrible mistake to make. And it puts in question, if for an entire decade, the independence of the most significant body … in this country, the Supreme Court of the United States of America."
The last time Congress altered the number of justices to the Supreme Court was in 1869 when the number was adjusted to nine. Before that, Congress routinely altered the number of justices to achieve political goals, changing from as few as five justices under John Adams to as many as 10 under Abraham Lincoln.