Packing the Court

Robert Brooks Contributor
Packing the Court
Read Time: approx. 3:51

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In the first Presidential debate, former Vice President Joe Biden came under fire from Republicans for dodging questions about whether he would pack the Supreme Court. When pressed repeatedly by President Donald Trump, Biden ultimately said “Will you shut up, man” adding, “Whatever position I take on that, that’ll become the issue.” One week later, Vice President Mike Pence hammered Sen. Kamala Harris on the same topic during the Vice Presidential debate, to which no clear answer was given. The next day, Biden again drew headlines when he said, “You’ll know my opinion on court-packing when the election is over,” during a campaign stop in Phoenix. Then last Friday, Biden said voters “don’t deserve to know” if he would attempt to pack the Court, which is something we pointed out was trending on the right the following day. After avoiding the issue for nearly two weeks, on Tuesday Biden softened his response to some extent, saying he is “not a fan” of adding seats to the Supreme Court. He 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.” Needless to say, this has been a hot-button topic that’s played out alongside the Amy Coney Barrett confirmation hearings this week. We plan to do a right-left analysis on that tomorrow, but in the meantime, here is what both sides are saying about the court-packing issue.

On the Right: Conservative commentators and right-leaning outlets generally believe that Biden and Harris’ nonresponse means they will pack the court. More broadly, they view the lack of response and court-packing issue as the former Vice President and Senator capitulating to the far-left wing of the Democratic party. Therefore, the specific topic of court-packing is certainly important, however, it’s also taken on added significance as a proxy for how far left the Biden-Harris ticket might lean, should they win the White House and Senate. Wrapped up in the court-packing debate is also whether or not Biden would support eliminating the filibuster and admitting both Washington D.C. and Puerto Rico as new states. The Wall Street Editorial Board writes: “The question [of packing the court] is central to American self-government. Democrats on the resurgent left believe the Supreme Court is a de facto second legislature to achieve policies they can’t pass in Congress.” On his podcast, Ben Shapiro adds “what [Democrats] really mean [by court packing] is that the judiciary is no longer supposed to be an objective branch of government.” Shapiro says “if the judiciary were to start basically cramming its opinions down on the American public rather than just looking at the text of a statute and then trying to hew as closely as possible to the proper meaning of the text of the statue, they would be a legislature and there would be no reason to have” a Supreme Court. Finally, the New York Post Editorial Board writes, court-packing “is so radical that the Senate (and the public) rejected it even when President Franklin Roosevelt pushed it after the Supremes threw out much of his early New Deal as unconstitutional.” Hugh Hewitt of the Washington Post concludes by saying that “A whopping 70 percent of Americans view the court ‘favorably,’ far and away the most esteemed of any national institution,” therefore it should not be tampered with. Hewitt says that’s why “For the good of the country, Biden must answer the court-packing question.”

On the Left: Progressive commentators and left-leaning outlets think the court-packing topic is a Republican ploy to shift the media’s attention, and therefore the public’s attention, away from President Donald Trump’s handling of the coronavirus and the GOP’s track record of Supreme Court picks and non-picks. Joe Concha of the Hill points to “CNN’s Don Lemon [who] argued late Monday that questioning Democratic presidential nominee Joe Biden or his running mate, Sen. Kamala Harris about court-packing is not ‘legitimate’ because it is based on a ‘hypothetical,’ with the anchor adding that he feels the issue is a ‘distraction from the Republicans and the president.'” Referring to Republicans’ 11-month blockade of Merrick Garland in 2016, Lemon argued, “People are concerned about the Republicans switching and being hypocrites in saying ‘This is an election year.'” Lemon added: “People are also concerned about where they’re gonna get their health care from, are they gonna die from COVID, they’re worried about their preexisting conditions.” Writing for the New York Times opinion section, Jamelle Bouie says: “… to show Republicans that they cannot keep the ill-gotten gains of the Trump years — Democrats will need to expand the courts.” Bouie points to what he calls “several straightforward, nonpartisan reasons for increasing the entire federal judiciary and adding additional Supreme Court justices.” Bouie says: The last major expansion was 30 years ago with the Judgeship Bill of 1990. Since then, the population of the United States has grown from roughly 249 million to just over 330 million. With ever more litigants and ever more cases, the country needs more judges.” He continues: “In addition, a growing and diversifying country should see itself reflected at every level of the federal judiciary. More judges means more opportunities for representation, both for district and appellate courts and for the Supreme Court. With two or four or even six additional justices, lawmakers could shape the court to look a little more like America as it is.”

Flag This: According to the Pew Research Center, “the average tenure of a Supreme Court justice is nearly 17 years.” History also notes, “with lifetime appointments, it’s not unusual for Supreme Court justices to serve well past the average U.S. retirement age of 63.” In the late 1930s, President Franklin D. Roosevelt tried to get around term limits by introducing the “Judicial Procedures Reform Bill of 1937. The legislation would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months. It’s interesting to note the timing of this bill as it was introduced during the Great Depression. Eight decades later we are currently dealing with another historic economic crisis, and the topic of court-packing has resurfaced. That said, the debates stem from different origins. Starting in 1935 and continuing for the next 13 months, the Supreme Court “struck down more pieces of legislation than at any other time in U.S. history,” Dr. David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, says, referring to FDR’s New Deal laws. Today, however, the motivation for court-packing is viewed more as retribution for hypocrisy by those who favor adding Justices. Regardless, this topic will continue to be a talking point throughout the campaign.