vision 2020

What Is Biden’s Actual Position on Packing the Court?

Photo: Andrew Harnik/AP/Shutterstock

As part of the Biden campaign’s decision to take few risks during a general election in which he has enjoyed a commanding and lasting lead over his opponent, the candidate has refused to provide his opinion on court-packing — an issue that has become much more salient following the death of Justice Ruth Bader Ginsburg and the reality of a pending 6-3 majority on the Supreme Court.

Since the late justice passed in September, debate moderators, interviewers, and President Trump have consistently pressed Biden on whether or not he plans to add judges to the nine-member Supreme Court. Consistently, Biden has talked around the issue, refusing to directly state whether or not he supports expanding the number of seats on the bench so as not to dissuade any swing voters for whom the integrity of a nine-justice SCOTUS — a number established by Ulysses S. Grant in 1869 — is paramount. With the issue all-but-guaranteed to come up at the next debate, below is everything we know about Joe Biden’s and Kamala Harris’s opinion on packing the court.

What has Biden actually said about packing the court?

During the primary last year, Biden said that he believed Democrats would “live to rue” the day they expanded the court, and later added that such a game of “political football” could “come back to bite us.” At an October 2019 debate, he provided his most direct answer up until that point: “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.”

But a year later, following the death of Justice Ginsburg, Biden has been careful to give non-answers on the topic. “Whatever the position I take on that, that will become the issue,” Biden said at the first debate, in a master example of saying nothing. In early October, he told reporters that they would “know my opinion on court-packing when the election is over.” Explaining his decision not to provide more detail, Biden said he was refusing “to play his game,” referring to Trump’s pressure for Biden to answer the question. (Trump has posited that his opponent hasn’t aired his position because it would reveal that Biden is a “puppet” of a party “willing to destroy the U.S. Supreme Court.”)

Last week, Biden gave a near-complete answer — one that seemed to merge his opinion last year with his current hesitancy — in an interview with Cincinnati’s WKRC. “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.”

His opacity may not last all the way to November 3. In his debate-substitute town hall with George Stephanopoulos, Biden said he would provide a real answer on court-packing before the election.

What has Harris actually said about packing the court?

Harris has had a similar turn from a concrete answer in the 2019 primary to an obscured opinion in the general. In March 2019, she told Politico that an expanded court could be a tool to help counter the Republican push to make a conservative institution out of the federal judiciary, including the Supreme Court. “We are on the verge of a crisis of confidence in the Supreme Court,” Harris said. “We have to take this challenge head on, and everything is on the table to do that.”

Following the death of Ruth Bader Ginsburg, Harris has been more cautious in her comments on the matter. When pressed by Mike Pence at the vice-presidential debate, she responded by citing the Republican argument for not holding nomination hearings for Merrick Garland: “The American people deserve to make the decision about who will be the next president of the United States, and then that person can select who will serve for a lifetime on the highest court of our land.” Later, she compared Trump’s appointment of young, unqualified, and overwhelmingly white judges to court-packing: “Do you know that of the 50 people who President Trump nominated to the courts for lifetime appointments, not one is Black? This is what they’ve been doing. You want to talk about packing the courts, let’s have that discussion.”

Would the Biden administration actually have the power to expand the Supreme Court?

While the Constitution does not specify the number of Supreme Court justices, for Biden to attempt a SCOTUS expansion, Democrats would need to hold onto control of the House and win a majority in the Senate to change the law to add more members. That down-ballot calculation appears to be a major part of his decision not to provide a clear answer — so as to not tip a close Senate race in the Republican candidate’s favor if voters are more concerned about a (relatively arbitrary) number than the idea of a conservative 6-3 firewall against progressive legislation.

What Is Biden’s Actual Position on Court-Packing?