“Court packing” is now a major issue in the presidential campaign because neither Democratic presidential nominee Joe Biden nor his running mate, California Sen. Kamala D. Harris, will say what they think about demands by their party’s radical wing to expand the court.
In the struggle for Senate control on Nov. 3, the court-packing question has also become a central concern. Sen. Susan Collins (R-Maine) has blasted her opponent, Democrat Sara Gideon, for refusing to rule out court-packing. Republican Sen. Cory Gardner (Colo.) is facing a similarly silent Democrat in John Hickenlooper. Before North Carolina Democratic nominee for Senate Cal Cunningham’s campaign imploded over his extramarital activities, the court-packing issue was central to Republican Sen. Thom Tillis’s reelection bid. In Iowa, the Democratic nominee, Theresa Greenfield, initially rejected the idea but has since ducked the question, while Republican Sen. Joni Ernst, a member of the Judiciary Committee, has forcefully rejected the idea.
The Constitution does not fix the number of the justices that serve on it, but the number settled at nine in 1869 and has remained there ever since. In the previous 80 years, the court’s makeup had changed half a dozen times, often for partisan gain. After the convulsions of the Civil War, America’s national institutions needed credibility and stability. Leaving the Supreme Court intact with nine justices helped achieve those aims. The court has gone through long periods of leaning one way or the other on issues of intense public interest, but the court’s overall stability has made it a bastion of public confidence.
Nearly two-thirds of Americans (65 percent) recently told the Pew Research Center that the Supreme Court has the right amount of power. Fifty-six percent view the Supreme Court as “middle of the road” rather than “liberal or conservative.” A whopping 70 percent of Americans view the court “favorably,” far and away the most esteemed of any national institution. (Less than 20 percent of Americans trust the national government generally to “do what’s right,” according to Pew.)
Only one president, Franklin D. Roosevelt, has dared to endanger the post-Civil War consensus on the court’s size by trying cajole Congress into changing the number of justices. The Judicial Procedures Reform Bill of 1937 was Roosevelt’s attempt to pack the court and fix the results of every dispute that wound up before it.
FDR had reason to believe his power grab would work. He enjoyed huge Democratic majorities in both houses of Congress, yet the court-packing plan failed miserably, losing 70 to 20 in the Senate. Even the president’s own party was repulsed by the idea of changing the court to rig the results of disputes.
The idea was dead, dead, dead … until this presidential cycle saw would-be Democratic nominees compete with each other for ever-more-radical proposals to attract their party’s left edge. Expanding the Supreme Court is the most radical proposal of them all, and Biden refuses to say whether he’s for it or against it. On Thursday, Biden told reporters, “You’ll know my position on court-packing the day after the election.” On Friday, when a reporter pressed Biden by asking, “Don’t voters deserve to know…,” Biden cut him off, saying, “No they don’t deserve. I’m not going to play his game.” (By “game,” Biden seemed to mean President Trump’s attempt to force a Democratic answer to the question.)
What matters here isn’t the result of this year’s vote, but the stability of the rule of law. What matters is the court’s ability to have the final say, and to be regarded as above politics when it does so. That’s why it could order President Richard M. Nixon to turn over secretly recorded tapes to Watergate investigators and see him quickly comply; why it could order Southern schools to desegregate and have its order enforced across decades; why it could decree only a few years ago that same-sex couples are entitled to marry and see the ruling immediately acquire the durability of Marbury v. Madison, the 1803 decision establishing the court’s right to rule on the constitutionality of federal statutes.
Court-packing is a threat to the Supreme Court and thus to every American freedom, especially religious liberty, the Second Amendment and property rights, and the separation of powers fundamental to our republic’s durability. The Biden-Harris ticket and every Democratic Senate candidate should publicly condemn the idea or be rejected by the voters for failing a fundamental test of their suitability for office.