the national interest

Biden’s Supreme Court Answer: Reform It, Don’t Pack It

Joe Biden. Photo: Carolyn Kaster/AP/Shutterstock

Joe Biden has been dodging questions about whether he supports packing the Supreme Court, first absurdly denying voters had any right to know his position, then promising he would reveal it after the Senate voted on Amy Coney Barrett’s nomination. In his 60 Minutes interview with Norah O’Donnell, Biden gives an answer. Sort of. He would appoint a bipartisan commission to propose reforms:

This sounds a bit like the classic dodge by a politician of appointing a blue-ribbon panel to study the issue. But Biden’s answer lets on a bit more information.

“There are a number of things that our constitutional scholars have debated and I’ve looked to see what recommendations that commission might make,” he tells O’Donnell. “So you’re telling us you’re going to study this issue about whether to pack the court?” she asks. “No, there are a number of alternatives that are — that go well beyond court-packing,” he replies.

The sort of alternatives Biden is signaling are reforms designed to fundamentally alter the court in a stable and balanced fashion. One proposal that got a bit of attention during the campaign was Pete Buttigieg’s 5-5-5 plan, under which each party would be able to appoint five justices, and they would collectively agree on five (presumably nonpartisan) justices.

Reforming the court is different than packing it. A court-packing plan involves expanding the number of seats, and filling it with loyalists, so that your own side controls a majority. It’s changing the rules in order to gain a permanent advantage. Reforming also involves expanding the number of seats, but its intent is to prevent either side from gaining a permanent advantage.

Biden’s explanation points in this direction. “There’s a lot of conservative constitutional scholars who are saying it as well,” he says, “The last thing we need to do is turn the Supreme Court into just another political football, whoever’s got the most votes gets whatever they want.” Notice that the description he uses for court-packing is “the last thing we want to do.” Advocates of court-packing often concede that their plan would accelerate the politicization of the courts, to the point where they eventually lose their standing as ultimate unchallengeable arbiters of law. (Not every democratic political system grants courts the same ultimate authority over laws as the United States.)

Biden’s argument is to depoliticize the courts by reducing partisanship. Of course, Republicans aren’t going to like this idea at all. They currently control the court and are about to cement an advantage likely to endure for decades. To them, Biden’s reform plan sounds like “what’s yours, is ours.” In reality, finding the votes for a nonpartisan reform probably requires credibly threatening Republicans with court-packing, and then offering a reform plan as a middle ground.

Any of these proposals would be difficult to enact during Biden’s term. It would require a Court ruling so outrageous — perhaps striking down an important Biden reform proposal on spurious grounds — and perhaps even a series of them. In any case, Biden has revealed his instinct on this issue, as with most. He wishes to repair institutions and drain them of partisanship, rather than attempt to gain a permanent advantage.

Biden’s Supreme Court Answer: Reform It, Don’t Pack It