Republican Senate Leader Mitch McConnell (R-KY) slammed President Joe Biden for “continuing to erode norms and our institutions” after he took the unprecedented move of signing Judge Ketanji Brown Jackson’s commission to the U.S. Supreme Court despite Justice Stephen Breyer remaining on the Court.

Even though Breyer will serve on the Court until the end of the current term, which is expected to finish in June, Biden formally signed Jackson’s commission to the Court last month after her confirmation by the U.S. Senate. Judge Jackson’s signed commission marks ten Supreme Court justices who have been commissioned by the president to sit on the Supreme Court. However, federal law only authorizes nine justices to serve on the Court.

Jackson’s appointment to the Court was also unusual because she was nominated and confirmed before a vacancy occurred. Biden quickly nominated Jackson to the Supreme Court after Breyer announced his intent to retire at the end of the current term.

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, DC on April 23, 2021: Justice Samuel Alito, Justice Clarence Thomas, Justice John Roberts, Justice Stephen Breyer, Justice Sonia Sotomayor, Justice Brett Kavanaugh, Justice Elena Kagan, Justice Neil Gorsuch, and Justice Amy Coney Barrett. (Photo by Erin Schaff-Pool/Getty Images)

Usually, a new Supreme Court justice is sworn in almost immediately after the president signs their commission. However, the U.S. Department of Justice’s Office of Legal Counsel issued a memo one day before Jackson’s confirmation that purportedly gave Biden the blessing to sign her commission before a vacancy occurred.

“If the Senate votes to confirm Judge Ketanji Brown Jackson as an associate justice of the Supreme Court, the president may complete her appointments to the Supreme Court by signing her commission before Justice Breyer’s resignation takes effect,” the Department of Justice (DOJ) memo said.

McConnell said the memo “raises more questions than it answers.”

“President Biden seems to think that Stephen Breyer and Ketanji Brown Jackson are both duly appointed associate justices occupying one seat simultaneously. Obviously that is false,” McConnell told Fox News. “And the Biden Department of Justice’s slapdash memorandum raises more questions than it answers.

The Republican Senate leader went on to call out Biden for eroding “norms and our institutions,” and noted his White House court-packing commission.

McConnell added:

Whether this is just incompetence or some hair-brained scheme, the same president who set up a court-packing commission is continuing to erode norms and our institutions. The president, the attorney general and the chief justice should publicly clarify that the Court has eight associate justices and one chief justice, notwithstanding the administration’s claims. The Biden administration’s continued attacks on norms and institutions will have a cost.

Republican aides reportedly argued Biden signed Jackson’s commission early because he wanted to “intentionally confuse” the public on the number of Supreme Court justices.

“The first pro-court-packing administration in 85 years appears to be claiming that before any vacancy exists, they can nominate, confirm, and irrevocably appoint a ‘Justice-in-waiting’ that neither any future Senate nor any future President could claw back,” one Republican aide told Fox News. “If they actually mean it, this is a radical claim that points toward wildly uncharted territory for the confirmation process.”

Sen. Marsha Blackburn (R-TN) worried that congressional Democrats would pressure Chief Justice John Roberts to place Jackson on the Court ahead of the upcoming decision on the fate of Roe v. Wade, which the Court is expected to strike down this term, according to recent leaks.

“Will the Democrats pressure Chief Justice Roberts to seat Judge Jackson and pack the court?” Blackburn tweeted.

Blackburn’s question is not without merit. For example, Sen. Ed Markey (D-MA) called on Congress to “expand” the Court after news of the Court’s expected decision leaked. “A stolen, illegitimate, and far-right Supreme Court majority appears set to destroy the right to abortion, an essential right which protects the health, safety, and freedom of millions of Americans,” Markey tweeted. “There is no other recourse. We must expand the court.”

Ketanji Brown Jackson, a circuit judge on the U.S. Court of Appeals for the District of Columbia Circuit, makes brief remarks after U.S. President Joe Biden introduced her as his nominee to the U.S. Supreme Court during an event in the Cross Hall of the White House February 25, 2022, in Washington, DC. (Photo by Drew Angerer/Getty Images)

However, White House deputy press secretary Andrew Bates denied any attempts to fast-track Jackson onto the Court ahead of Breyer’s retirement.

“Following her bipartisan confirmation, Judge Jackson remains on the U.S. Court of Appeals for the D.C. Circuit and will become an associate justice on the Supreme Court when Justice Breyer steps down at the end of this term and she takes the oaths of office,” Bates told Fox News. “Unless Sen. McConnell knows something we do not, none of the other eight justices have announced that they plan to retire.”