In an October 15 ABC News town hall, former Vice President Joe Biden surprised reporters by making a new statement on his plan regarding court packing—a hotly contested issue throughout US history, but most recently following the seat vacancy of the late Justice Ruth Bader Ginsburg this September.
Biden began by stating during the town hall that he was “not a fan” of court packing, keeping consistent with previous interviews, but was “open to considering what happens from that point on”—referencing the confirmation hearing of Trump’s Supreme Court nominee Amy Coney Barrett eight days before Election Day. Where Biden’s words departed from his campaign’s established rhetoric that night, however, was when asked if voters have a right to know where he stands on the issue.
“They do have a right to know where I’ll stand and they’ll have a right to know where I stand before they vote,” he assured.
His promise to reveal his campaign’s position on expanding the court before Election Day was certainly bold. However, it became increasingly apparent in following weeks that this was just another politician’s misleading attempt to assuage a controversial media question. After Barrett’s confirmation on October 26, an act which was denounced by Democrat politicians across the board, Biden remained silent on the issue of court packing. As of his presidential victory this weekend, the American people still do not know the future of America’s judiciary under Biden’s watch.
So, Biden may have misguided viewers during his town hall. But considering the supposed content of this promised statement, his decision not to speak up before election day should not come as a surprise. The United States judiciary—at the forefront of public consciousness in this election—had the capacity to play an instrumental role in his electoral success, not to mention bring up a slew of century-long political disputes to his name.
The contentious nature of court packing during this particular election cycle stems from a precedent set in 2016 by Senate majority leader Mitch McConnell during the Obama administration. Like Justice Ginsburg’s passing, Justice Antonin Scalia’s death occurred during an election year and provided a vacant seat for the President to nominate a new justice to the Supreme Court. Obama’s pick to fill this seat, Judge Merrick Garland, was denied by McConnell, whose case was that it was an election year and that the new President-elect should nominate the new justice. That way, the American people could somehow have a say in the decision in a transitive manner, Sen. McConnell argued. The vacant seat was then filled by conservative Neil Gorsuch, appointed by President Trump.
Four years later, the death of Justice Ginsburg opened up an opportunity for Republicans to cement their conservative majority in the Supreme Court. Sen. McConnell, along with the Senate Republican majority (with the exception of Sen. Susan Collins), confirmed Barrett to serve for life in the U.S.’ highest court with a 52-48 vote. In doing so, Sen. McConnell failed to uphold the precedent he set four years earlier.
The court packing controversy came to national light this fall because of this very process. Not only did Sen. McConnell’s decision to confirm Barrett infuriate Democrat politicians, but the presence of the now 6-3 conservative Supreme Court majority serves as a sinister threat to women’s reproductive rights, marriage equality, and liberal values—for perhaps a very long time considering Barrett’s relatively young age and her lifetime term.
Understandably, in response to the new state of our judiciary, there have been talks among Democrats of adding seats as an attempt to restore liberal seats to counteract the current conservative majority. Republicans have been scrambling to forestall these pursuits by introducing a constitutional amendment to limit the size of the courts and painting “court packing” as a radical left move in political attacks. During Trump’s re-election campaign, both Trump and Pence regularly attempted to scare voters from Biden with this tactic, saying the Biden administration would “stack the courts” with seats “hand-picked by extremists.”
The term “court packing” is somewhat of a derisive one, implying an unconstitutional nature and abuse of power as many GOP politicians, including Sen. McConnell, often claim. Yet there is nothing in the Constitution that specifies the size of the courts. Other presidents in America’s early years have even changed the number of seats multiple times with the help of the Senate. Moreover, the GOP has no moral high ground in this debate, themselves being guilty of frequent court packing on the state level.
The problem with the GOP case against expanding US courts is its hypocrisy: as they criticize Democrats for attempting to add seats to the courts, Republicans take every measure to refuse Democrat-nominated judges in order to maintain their conservative power. Conversely, the Democrats’ flaw in criticizing the Senate majority confirming Justice Barrett is there was nothing inherently unlawful or unconstitutional about it. Our leaders find themselves in this never-ending political fistfight not about “righteousness” and “adhering to the Constitution,” but it’s clear that what they really care about is advancing their party’s agenda.
So, this conversation should not even really be about court size. It should be about why the processes to choose those few justices in the Supreme Court are so consequential.
In some ways, Supreme Court justices are the closest thing to dictators existing in our American democracy. They are appointed by Presidents, and the common people have no say in their selection. They serve life tenures while every other position in government has fixed terms. And most disturbingly, they are hardly ever checked for power or impeached, yet their decisions hold at stake the quality of life of so many Americans. The size of the courts doesn’t matter when the processes to pick these individuals establishes unchecked power that lasts a lifetime; the justices do. The existence of this all-powerful judiciary is a threat to our American democracy—and there will be major repercussions if we do not address it. So let’s move away from the court packing debate. There is a much more sinister issue here at hand: the Supreme Court’s dictatorial grip.
