Dems’ nonanswers on court give GOP campaign issue
To Republicans, it’s court-packing and a juicy election issue. To some Democrats, it’s Supreme Court expansion and a topic to be addressed if they retake the White House and the Senate, then see their policy goals thwarted by a conservative court.
In a vice presidential debate Wednesday, Vice President Mike Pence told Sen. Kamala Harris that “the American people would really like to know ... are you and Joe Biden, if somehow you win this election, going to pack the Supreme Court to get your way?”
Whether Democrats would seek to add seats to the court if Biden is elected was clearly not a question Harris was eager to answer. Instead, she referred to Abraham Lincoln and his deci
sion to await the 1864 election before nominating a replacement for Chief Justice Roger Taney, who died 27 days before election day.
“The American people deserve to make the decision about who will be the next president,” who should then choose the successor to the late Justice Ruth Bader Ginsburg, Harris said, even as Senate Republicans were preparing for Monday’s opening of confirmation hearings for President Trump’s nominee, Amy Coney Barrett, a federal appeals court judge with a conservative record.
Biden told an interviewer in July 2019 that “I’m not prepared to go on and try to pack the court, because we’ll live to rue the day.” But the former vice president has sidestepped the issue during the presidential campaign.
“You will know my opinion on court-packing when the election is over,” Biden said Thursday while campaigning in Arizona. “The moment I answer that question, the headline in every one of your papers will be about that rather than focusing on what’s happening now.”
His comment was greeted with outrage mixed with glee among conservatives, sensing an issue that could benefit Trump. Biden “insulted voters by wimping out on the court-packing question, all but admitting that he would radically change one of the three branches of government without having the guts to actually say so,” said Carrie Severino, president of the Judicial Crisis Network.
For Biden, there may be little to be gained from saying anything of substance on the subject. Rule out adding seats, and he risks angering progressives whom the Democrats need to turn out with enthusiasm for the election. Commit to it, and he invites a distraction from Trump’s numerous problems stemming from the coronavirus pandemic.
Biden would much rather talk about Barrett’s nomination. Polls indicate the voters would prefer that the winner of the Nov. 3 election name Ginsburg’s successor.
With the confirmation of the 48yearold Barrett seemingly assured in a Republicancontrolled Senate, giving conservatives a 63 court majority, commentators on the left say Democrats, if they regain political power, should consider adding as many as four justices.
From the Democrats’ perspective, Republicans engaged in court-packing by denying a hearing to President Barack Obama’s nominee, Merrick Garland, in 2016 and now by rushing Barrett’s appointment, said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “They’re facing a very conservative court for a decade or two to come, and what alternative do they have?”
Sen. Ed Markey, D-Mass., who has become a favorite of progressives, likewise referred Thursday to Senate Majority Leader Mitch McConnell’s declaration in 2016 that neither Garland nor any other Supreme Court nominee should be considered in a presidential election year. “If he violates it ( by confirming Barrett), when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court,” Markey tweeted.
Some Democrats might resist repealing the filibuster, a longstanding rule that empowers minority voices in the Senate by requiring 60 votes to take up new legislation. But it has been abolished for judicial appointees in recent years. And it would be far from unprecedented for Congress to change the size of the Supreme Court, a power assigned to lawmakers by the Constitution.
The size of the court varied from five to 10 justices through much of the 1800s for a variety of legal and political reasons before Congress settled on nine justices in 1869, said Maeva Marcus, a George Washington University law professor and Supreme Court historian.
“Since that time, the number has sort of become holy, though there’s no particular reason for it,” she said.
The only serious attempt at change came in 1937, when President Franklin D. Roosevelt, angered by rulings throwing out his New Deal programs, proposed expanding the court to 15 seats. The plan, quickly dubbed court-packing, died in Congress, though the court soon started upholding Roosevelt’s programs when one moderate justice changed his position and a conservative jurist retired under a new law that preserved his salary.
Since then the court’s size and legitimacy have seldom been questioned. Its rulings, however, have periodically become ideological battlegrounds — desegregation in the 1950s, abortion in 1973, the presidential election in 2000, corporate spending on political campaigns in 2010 — and its public standing has suffered.
“People think less of the court now as an independent branch of government,” said Marcus, a former president of the American Society for Legal History and a former Supreme Court employee. “People think it’s politically swayed.”
Some recent rulings by the life-tenured justices would seem to contradict those views — the 63 decision by Trump appointee Neil Gorsuch to ban job discrimination based on sexual orientation or gender identity, and a 54 ruling by Chief Justice John Roberts preserving Deferred Action for Childhood Arrivals, Obama’s program for young undocumented immigrants.
But Democrats fear that a new court, with the addition of Barrett, would throw out Obama’s health care law, reduce or eliminate the right to abortion and escalate the Roberts court’s rollback of federal voting rights laws in ways that could make elections more difficult for Democrats to win. Those concerns could justify changing the law to create a 13member court, UC Berkeley’s Chemerinsky said, despite the prospect that a future Republicanled government would add even more justices.
While an expansion would be legally authorized, it would also erode the public’s confidence in the independence of the court, said Nate Persily, a Stanford constitutional law professor.
“The court derives its power from its perceived legitimacy, and these actions will further cement people’s view that it is just another victim of our polarized political environment,” he said.
Michael McConnell, another Stanford constitutional law professor and a former federal appeals court judge, had a more dire perspective.
“If any time a president and Congress are of the same party and put as many people on the Supreme Court as they want, they just get to make up the Constitution as they go,” McConnell said.
“It’s flatly inconsistent with an independent court,” he said. “I think it would pretty much be the end of having a constitutional republic.”