Democrats are threatening to expand the Supreme Court if President Trump’s nominee is confirmed, but whether the threats have any legs comes down to the position of Washington institutionalist Joe Biden.
Senate Majority Leader Mitch McConnell’s intention to proceed with filling the late Justice Ruth Bader Ginsburg’s seat, despite early voting for the Nov. 3 election being underway, has prompted calls from those in the left wing for a no-holds-barred retaliation in the event that he succeeds in confirming a Trump nominee. Assuming Democrats win control of both the Senate and the White House, they want to increase the number of justices on the Supreme Court up from nine and fill the new seats with Democrats’ choice of liberal-leaning justices — swaying the jurisprudence of the court for years.
Massachusetts Sen. Ed Markey called on Democrats to do just that in a tweet on Saturday following Ginsburg’s death, as did House Judiciary Committee Chairman Jerry Nadler of New York and former Attorney General Eric Holder.
Biden, though, could stand in the way of that plan. If Democrats do win the Senate, they are likely to be far below the two-thirds majority needed in both the House and the Senate to add judicial seats without approval from the president.
The 36-year Delaware senator and former chairman of the Senate Judiciary Committee has expressed firm opposition to expanding the court — sometimes called court-packing. The number of justices has not changed since 1869, with the last serious attempt of expansion coming from President Franklin D. Roosevelt in the 1930s.
“No, I’m not prepared to go on and try to pack the court because we’ll live to rue that day,” Biden told Iowa Starting Line in July 2019. He again rejected the idea in an October 2019 debate. “I would not get into court-packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
But that was nearly a year ago, and the political will of Democrats is changing.
Even before Ginsburg’s death, a number of Democrats expressed openness to expanding the number of justices on the Supreme Court in response to McConnell blocking the nomination of Obama nominee Judge Merrick Garland in 2016 following the death of Justice Antonin Scalia. McConnell argued then that voters should have a say in choosing the next justice.
“Biden blows with the political winds and always has his whole career,” University of Chicago law professor Brian Leiter told the Washington Examiner. “Right now, Democratic anger about Republican court-packing — first by stealing a seat from the Democrats (Garland), and now, turning around and stealing another one that should go to the Democrats given the Garland precedent (assuming Biden wins) — is going through the roof.”
Last year, a number of Democratic presidential candidates, including Sens. Cory Booker of New Jersey, Amy Klobuchar of Minnesota, and Kirsten Gillibrand of New York, expressed openness to expanding the court or otherwise reforming it. Former South Bend, Indiana Mayor Pete Buttigieg in February 2019 called the idea of expanding the number of justices “no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”
And Democratic congressional leadership is leaving open the threat of expanding the court, refusing to rule out any major structural changes.
“Nothing is off the table,” Senate Minority Leader Chuck Schumer said in a conference call with Democrats on Saturday.
“We have our options. We have arrows in our quiver that I’m not about to discuss right now,” House Speaker Nancy Pelosi said Sunday on ABC’s This Week.
Biden has already adjusted his position on another major institutional tool: the Senate filibuster, which prevents the chamber from passing legislation without support from at least 60 of the 100 members. Despite telling the New York Times editorial board in January that he opposed ending the filibuster, in July, he expressed openness to getting rid of it, paving the way for sweeping legislation to reach his desk even with just a narrow majority of support.
The Biden campaign did not respond to a request for comment on whether he still opposes expanding the number of justices on the Supreme Court, but the Washington Post reported that those on his team are annoyed with Democrats such as Markey calling for court expansion.
“People in your own party shouldn’t cause you problems 44 days out,” one anonymous adviser told the Washington Post.
The question of Biden’s position is an urgent one for centrist Republicans in tough reelection races this year weighing whether to support a Trump nominee. The risk of confirming a Trump nominee, court-packing backlash that could halt conservative power for years, is less potent if Biden will not allow it.
Leiter, the University of Chicago law professor, noted that court expansion is not the only way that Democratic politicians could reshape the court.
“If the Democrats don’t add seats to the court, then I expect they will strip it of jurisdiction, as one of my colleagues and a professor at Yale have proposed,” he said, citing an academic paper from this summer. “It’s worth keeping in mind, too, that the Constitution does not grant to the Supreme Court the right to say what the Constitution means. The Supreme Court has long claimed that authority, and since the late 1950s, the other branches have mostly acquiesced to that. But that could change if the Republican court-packing succeeds and the Democrats control the other branches.”
