How does Joe Biden feel about court packing? During the Democratic primary, Biden outright stated that he opposed adding seats to the Supreme Court. And then Senate Republicans made it clear that they would fill Justice Ruth Bader Ginsburg’s seat with an ultraconservative in the midst of an election, abandoning the fake rule—no confirmations in an election year—they made up to keep Merrick Garland off the bench, and the Democratic nominee was forced to reconsider. Biden debuted a cautious new stance: At the first presidential debate on Sept. 29, Biden refused to state his views on court expansion, fearing it would draw attention away from Democrats’ battle against Amy Coney Barrett. On Oct. 8, Biden told a reporter that we will “know my opinion on court packing when the election is over.” He later added: “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.”
Biden’s nebulous position in this first month following Ginsburg’s death was frustrating to some, but it was politically smart. In essence, it was a dare to both Senate Republicans and the Supreme Court itself: fuck around and find out. This audacious attitude incensed conservatives, in part because Biden had escaped the trap they set for him. If Biden endorsed court expansion, Republicans would call him a dangerous radical; if he rejected it, Democrats would condemn his unilateral disarmament. By letting the threat hang in the air, Biden put the GOP on notice that he might expand the court if they confirmed Barrett—without framing the move as pure partisan retaliation. He put the Supreme Court on notice, too, that he could add seats if it lurches too far to the right. And, perhaps most importantly, he did not change the dynamic of the election (which he is winning) in the slightest. The focus stayed trained on Barrett, even if Senate Democrats failed to convey the illegitimacy of her confirmation process or the conservative revolution she will usher in.
Then, on Thursday, 60 Minutes revealed that Biden has changed his tune. In an interview with Norah O’Donnell, the candidate put forth his clearest statement yet on court expansion, declaring:
If elected what I will do is I’ll put together a … bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack, the way in which it’s being handled. And it’s not about court packing. There’s a number of other things that constitutional scholars have debated and I’ve looked to see what recommendations that commission might make.
Biden’s assertion that “it’s not about court packing” could be read to disclaim court expansion altogether, but in context, it sounds like he means to say that court expansion isn’t the only option on the table. If that’s right, then there are two ways to interpret his broader response. The first is that Biden is basically bullshitting, biding his time by giving the nation’s norm lovers an answer-shaped object. The second is that Biden actually believes that a bipartisan commission can agree on a plan to save the Supreme Court. If Biden is just kicking the can for 12 more days, it’s smart politics. If he wants a commission to educate the American people about the need for court reform, he’s on the right track. But if he really intends to toss the most important political question of the century so far to a gaggle of politicians and eggheads, then we should probably just accept now that court reform is dead.
Why? A few reasons, most of them self-evident. Any Republican on Biden’s commission would vigorously oppose court reform; the GOP’s nihilistic drive to seize the judiciary has united the party more than any other issue. There is a strong likelihood that Republican commissioners would not just oppose any meaningful solution but deny the existence of a problem and undercut the work of their fellow members. Academics might be more productive, but they are also liable to spin a web of West Wing–style fantasies then ensnare themselves in impracticable proposals.
To wit: One leading alternative to court expansion would give SCOTUS five Republican appointees and five Democratic appointees, then let these justices pick five more ostensibly independent justices from the courts of appeals. Barrett’s confirmation will dash this idea, since there will be six Republican appointees already. But more importantly, its premise is unconstitutional, because only presidents are authorized to nominate justices. If the commission endorses this plan and Congress enacts it, the current Supreme Court would likely invalidate it, sending everybody back to square one. By that point, Democrats may have lost control of Congress, mooting court reform altogether. The same problem plagues other technocratic proposals, like term limits imposed by statute (which would not solve anything for years) and jurisdiction stripping (which would prevent the court from hearing certain cases). If Biden doesn’t expand SCOTUS first, he’ll leave his piecemeal reforms vulnerable to its buzzsaw.
There is, however, a way to make this commission work—one that would require Biden to set aside the No Labels nonsense and get serious about winning over the public. As Elie Mystal noted on Thursday, court expansion is a new idea to most Americans; if Democrats pursue it, they need to explain its necessity, as well as its historical pedigree, to the people. Should Biden envision this commission as a panel of experts who can explain why fixing the courts is so vital, as Ian Millhiser suggested, it could be worthwhile. But if Biden is just fixated on finding bipartisan consensus, the whole enterprise will be doomed from the start.
If Democrats win big in November, there are two windows of time when they might summon the discipline, willpower, and popular support to add justices. The first is right after inauguration, during Biden’s honeymoon period, when Democrats feel emboldened, perhaps even driven by a mandate to undo the GOP’s capture of the court. The second is in June of 2021, when the new 6–3 conservative supermajority will issue a series of devastating rulings that reshape American law to mirror the (relatively unpopular) Republican Party platform. Biden’s 180-day commission would present its recommendations just as this crush of decisions came down. If the commission endorses court expansion at the same moment SCOTUS embraces extremism, perhaps Democrats would find the courage to act. But if it produces a jumbled, tepid report that only a law professor could love, Democrats may find that they missed their best opportunity to spare the country from decades of minority rule.