Biden: 'You'll Know My Opinion on Court Packing When the Election is Over' - Should He Tell Americans Before They Vote?

What’s the story?

• Democratic presidential nominee and former Vice President Joe Biden once again declined to answer a question as to whether he would support efforts by Democrats to expand the Supreme Court and pack it with liberal justices if he’s elected. At the end of a campaign event in Arizona on Thursday, Biden was asked by reporters if he supports court packing and replied:

“You’ll know my opinion of court packing when the election is over. Now look, I know ― it’s a great question, and I don’t blame you all for asking. But you know the moment I answer that question, the headline in every one of your papers will be about that.”

• During last week’s debate with President Donald Trump, Biden evaded questions from Trump about court packing and has declined to respond to questions on the matter. During the primaries, Biden said the Court would “lose all credibility” if it was expanded, so it’s unclear if his position has changed in light of Democrats’ growing support for court packing. The avoidance of the topic extended to Biden’s running mate, Sen. Kamala Harris (D-CA), who dodged questions about whether the ticket supports court packing posed by moderator Susan Page and Vice President Mike Pence during their debate.
• Democrats have warned they’ll consider packing the Supreme Court if Republicans fill the vacancy created by Justice Ruth Bader Ginsburg’s death with President Donald Trump’s nominee, Judge Amy Coney Barrett. In August 2019, Democratic senators sent a letter to the Supreme Court warning it would face “restructuring” if it took up a particular gun rights case and issued a decision counter to their wishes (the case was ultimately dismissed as moot after New York City revised its policy at the center of the controversy). 
• There has historically been bipartisan opposition to packing the Court because it could undermine its judicial legitimacy in the eyes of the public and trigger a series of tit-for-tat expansions to benefit the party with unified control of government. The late Justice Ruth Bader Ginsburg said in a 2019 interview with NPR’s Nina Totenberg that “nine seems to be a good number” of justices and “it was a bad idea when President Franklin Roosevelt tried to pack the Court.” Ginsburg added:

“If anything would make the Court look partisan, it would be that ― one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

• If the Biden-Harris ticket wins the election, and Democrats gain the Senate majority and keep their House majority, a Democratic Congress could put legislation expanding the Supreme Court on the president’s desk, where the president would either sign it into law or veto it. Both Biden and Harris are well versed in the interaction between the Court and the other branches of governments.
• Biden’s past in the Senate is closely connected to the Supreme Court. He was chairman of the Senate Judiciary Committee from 1987 to 1995, which has jurisdiction over the federal courts, and was the ranking minority member from 1981 to 1987 and from 1995 to 1997. Most notably during that time, Biden presided over Justice Clarence Thomas’s confirmation hearings.
• Harris is a current member of the Senate Judiciary Committee and participated in the confirmation hearings for President Trump’s first two Supreme Court appointees, Justice Neil Gorsuch and Justice Brett Kavanaugh. She also was involved in Judge Amy Coney Barrett’s confirmation hearing to the 7th Circuit Court of Appeals, and plans to participate in Barrett’s Supreme Court confirmation hearings that begin next week.

— Eric Revell

(Photo Credit: Gage Skidmore via Flickr / Creative Commons)