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During an interview on Monday, former Vice President Joe Biden stated, “I’ve already spoken on — I’m not a fan of court packing, but I don’t want to get off on that whole issue. I want to keep focused.” AP News
The right opposes packing the Supreme Court, arguing that it would irreparably harm the Court’s legitimacy.
“Any Democrats who think the Court always breaks 5-4 in favor of what the GOP wants should ask a grassroots conservative about Chief Justice John Roberts and Obamacare, and then stand back and brace themselves for a likely volcanic reaction…
“Just in the past few years, Roberts joined with the Court’s ‘liberals’ to strike down a Louisiana abortion law, to bar the addition of a question about citizenship to the U.S. Census, and to block President Trump from immediately ending the Deferred Action for Childhood Arrivals program. Justice Neil Gorsuch joined Roberts — and the liberal majority — in authoring a sweeping ruling that employers could not legally discriminate against gay and transgender people…
“If a Biden administration cannot enact an agenda that is seen as consistent with the U.S. Constitution in the eyes of justices like Roberts, Gorsuch, and Kavanaugh, whose fault is that? America’s think tanks, interest groups, universities, and policy wonks of every political stripe are constantly coming up with new ideas to tackle public problems. Vast numbers of those ideas would pass muster with the Supreme Court, even with a 6-3 ‘conservative’ majority… Life in a government built upon checks and balances and separation of powers means you can’t always get what you want, because you’re not supposed to always get what you want. A leader who always gets what he wants is a dictator.”
Jim Geraghty, National Review
“Notwithstanding that FDR had won a historic landslide victory in 1936 and enjoyed super-majority Democratic support in Congress, his own party slapped his proposal [to add additional new Justices to the Supreme Court] down, forcing the 20th Century’s most powerful president to beat a hasty retreat. That happened because Depression-era Democrats, unlike today’s Democrats, not only grasped but feared the implications. Expanding the Court and filling the new slots with progressive ideological allies, as FDR intended to do, would irrevocably convert the non-political judiciary into a politicized super-legislature…
“Those Democrats understood that times change. If they packed the Court, the Republicans at their next opportunity would expand the number of seats and array their own politically-driven lawyers in judicial robes. The Court would have become a super-legislature. That would destroy the Court as an institution. The legitimacy of the tribunal’s rulings – the reason its decisions are accepted by the public as law – is that they are presumed to be driven by the remorseless logic of jurisprudence, not the wheeling-and-dealing of politics. The destruction of the judiciary as a non-political institution would inexorably destroy our framework of government. ”
Andrew McCarthy, Fox News
“Nearly two-thirds of Americans (65 percent) recently told the Pew Research Center that the Supreme Court has the right amount of power. Fifty-six percent view the Supreme Court as ‘middle of the road’ rather than ‘liberal or conservative.’ A whopping 70 percent of Americans view the court ‘favorably,’ far and away the most esteemed of any national institution. (Less than 20 percent of Americans trust the national government generally to ‘do what’s right,’ according to Pew.)…
“What matters here isn’t the result of this year’s vote, but the stability of the rule of law. What matters is the court’s ability to have the final say, and to be regarded as above politics when it does so. That’s why it could order President Richard M. Nixon to turn over secretly recorded tapes to Watergate investigators and see him quickly comply; why it could order Southern schools to desegregate and have its order enforced across decades; why it could decree only a few years ago that same-sex couples are entitled to marry.”
Hugh Hewitt, Washington Post
“Ever since FDR’s failed scheme in 1937, the term has meant expanding the existing number of seats to make room for additional politically pliable judges. It failed in 1937 because it was seen as a threat to democratic government. ‘Surely, Mr. Roosevelt’s mandate,’ the progressive journalist William Allen White wrote in 1937, ‘was to function as the president, not as Der Fuehrer.’ The then-chairman of the Senate Judiciary Committee, Henry Ashurst (D-Ariz.), called expanding the court a ‘prelude to tyranny.’…
“If Biden’s aim was to prevent court packing from dominating coverage, he failed entirely… saying aloud that you won’t answer an important question because the answer will be controversial is not something any politician should do. It only churns the water…
“I suspect Biden doesn’t actually want to pack the court. He probably wouldn’t have the votes, and the fight over court packing would prematurely destroy the ‘return to normalcy’ and ‘national healer’ presidency he’s promised. But because of one blunder that made [it] the issue, it’s impossible to know what he’ll do.”
Jonah Goldberg, Los Angeles Times
“During the primaries, Biden opposed court-packing. In July, he said in Iowa, ‘No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.’ During a primary debate, he said, ‘I would not get into court-packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.’ So why not just repeat those words and be done with it?…
“There is no justification for Democrats to use [Ginsburg’s] untimely passing as one of their pretexts for court-packing — an idea Ginsburg abhorred. In an interview with NPR last year, Ginsburg said, ‘I think it was a bad idea when President Franklin Roosevelt tried to pack the court… If anything [it] would make the court look partisan. It would be… 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.’’”
Marc A. Thiessen, Washington Post
The left is divided about packing the Supreme Court, but agrees that Republicans have little standing to object.
The left is divided about packing the Supreme Court, but agrees that Republicans have little standing to object.
“The Republican Party has embraced court packing itself on the state level… Efforts to increase the size of state supreme courts have grown more prevalent in recent years, with GOP state legislatures leading the charge. In two instances, these efforts were successful…
“In Georgia in 2016, Republicans decided they’d had enough of their state supreme court’s Democratic majority, and empowered governor Nathan Deal to add two new justices to the body. In Arizona that same year, Republicans empowered governor Doug Ducey to add two new justices to its Supreme Court, a move that expanded that body’s conservative majority…
“[Furthermore] it was just four years ago that Republican senators John McCain, Ted Cruz, and Richard Burr all vowed to effectively shrink the Supreme Court by refusing to confirm any justice Hillary Clinton nominated over the ensuing four to eight years.”
Eric Levitz, New York Magazine
“The GOP Senate over the final two years of Obama’s presidency confirmed 28 percent of his nominees — less than half the rate of the previous four presidents. It confirmed 22 in total, which was the lowest number for a two-year span since 1951-52 and far shy of the 68 that a Democratic-controlled Senate confirmed in President George W. Bush’s final two years. In sum, Trump walked into office with more than 100 vacancies ready to be filled, including one on the Supreme Court…
“[In 2013 Sen. Charles Grassley (R-IA)] proposed a bill that would have statutorily shrunk the court from 11 judges to eight. Before that, he led an effort under George W. Bush to shrink the court from 12 to 11…
“As with many things in politics, trying to quantify gamesmanship is a subjective exercise, as is determining who is truly responsible for busting the norms that open the floodgates to a more politicized process. Republicans have argued that Democrats lost the moral high ground on such things with their treatments of Supreme Court nominees Robert Bork and Brett M. Kavanaugh and their filibusters of some of George W. Bush’s lower-court nominees… But the GOP at the very least ratcheted up the politicization in the Obama years significantly, as the numbers above make abundantly clear.”
Aaron Blake, Washington Post
“Democratic former vice president Joe Biden and Senate Majority Leader Mitch McConnell (R-Ky.) don’t agree on much. But they both say that judicial nominations should reflect the people’s will: In last month’s presidential debate with President Trump, addressing the pending Supreme Court nomination of Judge Amy Coney Barrett, Biden said ‘the American people have a right to have a say in who the Supreme Court nominee is.’ McConnell used similar rhetoric in 2016, arguing that his refusal to hear Judge Merrick Garland’s Supreme Court nomination by President Barack Obama would ‘let the American people decide.’…
“[But] If Barrett ascends to the Supreme Court, minoritarian judges will for the first time hold a majority of the Court’s seats… Justices Neil M. Gorsuch, Samuel A. Alito Jr. and Clarence Thomas were all confirmed by a majority of senators who collectively received fewer votes than the senators who voted against them. The same applies to Justice Brett M. Kavanaugh…
“Jurists and scholars have spent decades debating whether a judiciary with the power of ‘judicial review’ — the ability to overturn legislation passed by elected representatives — can be reconciled with democracy… The rise of a minoritarian judiciary makes this tension essentially intractable — and makes it far harder to credit McConnell’s supposed deference to the people.”
David Singh Grewal and Joshua P. Zoffer, Washington Post
Some posit that “There’s an obvious concern here — tit-for-tat. What is to stop a future Republican majority from expanding — or shrinking — the courts in turn? The answer is nothing. And I’m not sure there should be. If Republicans win the White House and control of Congress, then they should have the right to govern, and if governing means changing the composition of the court, they should have the right to do so. Much more important than somehow constraining future Republicans is working to make our democracy more fair, with equal representation…
“It is also not clear that an 11- or 17- or even 27-member Supreme Court is necessarily a bad thing. With more members, individual confirmation battles would be less heated and consequential. And tied even tighter to ordinary politics, the court might be more circumspect about striking down laws by duly elected lawmakers. The promise of tit-for-tat may actually be the thing that lowers the temperature of court battles, which might make it possible for both sides to find a new equilibrium.”
Jamelle Bouie, New York Times
Others, however, note that “When [President Franklin D.] Roosevelt finally struck against the court, at the start of his second term, his party held 76 of 96 seats in the Senate; he saw no reason why he could not persuade Congress to expand the court and, at the same time, renew his assault on the economic crisis. Yet his court plan cost him his mandate. It consumed Congress for nearly six months, dividing his supporters and driving some into the arms of the GOP…
“History, therefore, as well as political logic and math, counsel Biden against moving rashly. Even the more bullish blue-wave projections would give him nothing approaching FDR’s 60-vote margin in the Senate. At best, Biden might have three or four votes to spare. To advance his agenda—really, to do much of anything at all—he needs to avoid alienating Democratic senators like Joe Manchin of West Virginia with a costly fight over the court… A costly fight over the number of Supreme Court justices could put a stop to any real hope for reform under Joe Biden.”
Jeff Shesol, New Republic
