Biden and Harris Need an Answer on Court Packing

The pressure to take a position, not just from Republicans, but also from fellow Democrats, may only grow.

The Supreme Court building in black and white, slashed with blue paint
The Atlantic / Getty

Supreme Court confirmation battles have become all-out political wars, and last night’s vice-presidential debate offered a hint of the next stage in the escalation. Mike Pence and Kamala Harris were sparring over Amy Coney Barrett’s nomination when Pence turned to Harris and posed a challenge.

“Are you and Joe Biden going to pack the Court?” he asked her. In recent weeks, as Democrats have faced the possibility that an Antonin Scalia protégée will replace Ruth Bader Ginsburg on the bench, progressives have pushed a proposal to add new justices to the Court, arguing that it’s the only way to safeguard decisions on voting rights, abortion access, and same-sex marriage. “This is a classic case of, if you can’t win by the rules, you’re going to change the rules,” Pence continued. He turned to look into the camera. “The American people would really like to know.”

Harris refused to answer the question directly. Instead, she took a historical detour to 1864, explaining why Abraham Lincoln didn’t appoint a new Supreme Court justice shortly before he was up for reelection. “The American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime,” she said.

Maybe the Biden team thinks court packing is a distraction from the fight over Barrett—his communications director, Kate Bedingfield, has said as much. Maybe the question is still unresolved within the campaign. Maybe Harris didn’t want to answer a question from Pence; throughout the evening, both candidates dodged direct queries from the moderator, too. Whatever the reason, if Democrats win big in November, court packing will be an urgent and live question that Biden and Harris will have to take on within their coalition. Evasion isn’t a good enough answer.

With less than four weeks to go before the election, Americans are more tuned in to the future of the Supreme Court than at any time in recent memory. Nearly six in 10 voters say the Court will be “very important” to their choices in November, and the issue now ranks among voters’ top concerns, according to a Morning Consult poll taken shortly after Ginsburg’s death.

The Trump administration is relying on a Supreme Court victory to help them with voters. Across the board, polling suggests Trump is trailing Biden, including in several swing states where Republican-held Senate seats are on the ballot. While a majority of voters have said they believe that the winner of the presidential election should pick the next Supreme Court justice—the Biden-Harris position—Trump’s allies are betting that they can mobilize their base by pushing forward with Barrett. They had also hoped her confirmation would give them a way to redirect the political conversation away from COVID-19, although the recent coronavirus outbreak at the White House following the announcement of her nomination makes that much more difficult. If nothing else, her confirmation would secure a 6–3 conservative majority on the Court even if Republicans lose badly next month.

Republicans are also betting that court packing is a bad look for Democrats. The last major push for court packing happened under President Franklin D. Roosevelt, who openly wished for justices who wouldn’t challenge his sweeping New Deal legislation. “If you cherish the Supreme Court and the separation of powers, you need to reject the Biden-Harris ticket come November 3rd, and we’ll keep the nine-seat Supreme Court,” Pence said.

Pence’s tactic here is familiar: tying the historically moderate Biden to the desires of the Democratic Party’s progressive wing. But the Biden campaign may not be able to easily wave it away. When Harris was vying for the Democratic presidential nomination, she said she was open to adding more justices to the Court; so did multiple other candidates competing in the primary. In the past, Biden has dismissed court packing, but he declined to answer whether he wants to expand the Supreme Court during the last debate. The Senate minority leader, Chuck Schumer, has said that court packing will be “on the table” if Barrett is confirmed, and other members of Congress have rallied behind the proposal. The pressure to take a position, not just from Republicans, but also from fellow Democrats, may only grow.

With Congress at a perpetual standstill, the Supreme Court has become the default venue where some of the most high-stakes American political questions get adjudicated. Republicans have shown that they are willing to do whatever it takes to maintain a conservative majority on the Court, including holding open Scalia’s seat for nine months before the election in 2016, and now attempting to confirm Barrett just a few days before the election in 2020. If Democrats want to take the radical step of court packing in pursuit of their revenge, a drawn-out, bloody battle surely lies ahead. November’s election is a referendum on the chaos of the last four years. But the election might not end the chaos—it might just bring a new era. Right now, it’s the president’s move on the Court, but Biden and Harris have to be ready for their turn.