Joe Biden should rebuke court-packing idea
Democratic nominee Joe Biden’s refusal to answer a straightforward question about “court packing” not only is frustrating for voters, but undermines his main election theme of rolling back the norm-busting behavior of President Donald Trump. Few things would upend our democratic norms more than jiggering the makeup of the Supreme Court.
The goal of packing is to change the current conservative direction of the court by adding progressive-oriented justices. The last serious attempt to stack the court came in 1937, when President Franklin D. Roosevelt tried to do this out of frustration that the court was blocking his New Deal legislation. The effort ultimately failed in Congress, but left deep scars.
Last week, reporters in Arizona questioned Biden about the court issue. Americans will “know my opinion on court-packing when the election is over,” he said. “It’s a great question, and I don’t blame you for asking it, but you know the moment I answer that question, the headline in every one of your papers will be about that.” That’s a troubling dodge.
All Biden needed to do was quote himself from earlier in the campaign. “I would not get into court packing,” Biden said during a primary debate. “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.” That’s spot on.
Despite its flaws, the Supreme Court maintains credibility by staying above the partisan fray. Its justices generally espouse philosophies that reflect the president who nominated them, but they operate independently. Justices interpret the laws and apply them in specific situations. One need only mention Chief Justice John Roberts to realize how often judges defy political expectations.
“Independence of the judiciary is perhaps the single most crucial innovation of modern liberal democracies,” wrote Washington Post columnist Henry Olsen last month. Court packing would end that independence, he added, and bring our nation more in line with tyrannical governments, which “insist that judicial power be subject to the will of government.”
Presidential candidates should not cast any doubt on their support for an independent judiciary. We understand the political reasons for Biden punting. He doesn’t want to alienate progressive activists as the nation heads into the final weeks of the election. But that’s no excuse — especially for a candidate who says that he is committed to governing in a fair-minded manner and wants to calm our frayed national discourse.
It is true, as supporters of court-packing have argued, that the Constitution takes no position on the number of Supreme Court justices. Republicans have indeed been hypocritical on judges, as they quickly push through the nomination of Amy Coney Barrett even though they ran out the clock on President Barack Obama’s nomination of Merrick Garland.
These political tactics may be distasteful, but are a far cry from changing the court’s size to achieve desired political results. Democrats also try to deflect attention from Biden’s non-answer by pointing to some of Trump’s anti-democratic statements, including his casting doubt on whether he will accept the results of the election.
But this “whataboutism” doesn’t work here. The best way for Biden to show his commitment to American political traditions is to unequivocally oppose court-packing, which is one of the most undemocratic ideas imaginable.
Its justices generally espouse philosophies that reflect the president who nominated them, but they operate independently. Justices interpret the laws and apply them in specific situations. One need only mention Chief Justice John Roberts to realize how often judges defy political expectations.