By David ThorntonAfter weeks of vague answers on court-packing, Joe Biden has come forward with an answer to the question of whether his administration would attempt to expand the Supreme Court so that Democrats could appoint additional justices to balance out the new conservative tilt of the Court. In an interview with Norah O’Donnell of CBS, Biden backed away from progressive calls to pack the Court but said that he would consider other methods of reforming a judicial system that Biden says “is getting out of whack.”
“If elected, what I will do is I’ll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it’s getting out of whack,” Biden said in the interview, which will air Sunday on “60 Minutes.”
“It’s not about court-packing,” Biden added. “There’s a number of other things constitutional scholars have debated and I’d look to see what recommendations that commission might make.”
“So, you’re telling us you’re going to study this issue about whether to pack the court,” O’Donnell pressed.
“No,” Biden responded. “Where, there’s a number of alternatives that go well beyond packing.”
“This is a live ball,” O’Donnell responded.
“Oh, it is a live ball,” Biden agreed. “No, it is a live ball. We’re going to have to do that. And you’re going to find there’s a lot of conservative constitutional scholars saying it as well.”
“The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets what they want,” Biden continued. “Presidents come and go, Supreme Court justices stay for generations.”
Based on the clip, concerns about court-packing will be relieved, but they won’t completely go away. Biden, who has said as recently as last week that he is “not a fan” of court-packing, nevertheless left the door to expanding the Court cracked slightly open. Biden’s answer was not an explicit statement that he will never support packing the Court, but it did assuage concerns that the confirmation of Amy Coney Barrett would make him flip on the issue.
Polling has indicated that voters think both parties are wrong on Supreme Court issues. Most Americans opposed the rush to replace Justice Ginsburg before the election, but numerous polls show that they also oppose efforts to expand the Court. Further muddying the waters, voters approve of Judge Barrett and believe that she should be confirmed to the Court.
It is no surprise that Biden, one of the most moderate Democratic presidential candidates, would distance himself from the unpopular court-packing plans. Biden and his advisors can certainly read the polls and want to avoid handing Republicans a controversial issue with which to erode Biden’s lead.
The obvious question is what sort of reforms Biden’s bipartisan commission might propose. Earlier this week, an article in Bloomberg discussed several alternatives to court-packing, some of which might even gain support from Republicans.
The most obvious and probably the most popular way to reform the Supreme Court would be to impose term limits on justices. This would prevent situations like the last years of Ruth Bader Ginsburg in which justices hang on to their seats in hopes that a friendly president will be elected. Term limits would still have the problem of making the Supreme Court political as presidents campaign on their appointments to the Court, but they would at least fall upon predictable a predictable schedule rather than upending a campaign when a justice dies or retires.
Another alternative would be to reconstitute the Court with a balanced bench. Under this plan, there would be 10 lifetime justices, five appointed by Democrats and five by Republicans. These 10 justices would pick an additional five federal appeals court judges to join the Court for a one-year term. The 15-judge panel would decide cases for that year. Propoenents argue that such a court would be less partisan and more centrist.
A third proposal is a lottery system in which every federal appeals court judge is appointed as an associate Supreme Court justice. Cases would be heard by a panel of nine randomly selected judges with a maximum of five nominated by any president of one party.
Congress could also take away power from the Court by imposing a supermajority requirement. If the Court is not allowed to make sweeping decisions on a 5-4 margin, it would mean that broader agreement would be needed and fewer decisions would be rendered on a partisan basis. In reality, the Court’s conservative wing often fractures and Chief Justice Roberts seems to be the new swing vote.
The final proposal is most likely because it is the simplest and easiest to implement. Congress could simply strip jurisdiction from specific pieces of legislation. While it remains to be seen whether this method would be constitutional, Article III does stipulate that Supreme Court jurisdiction is limited by “such Exceptions, and under such Regulations as the Congress shall make.”
A downside to stripping jurisdiction is that such laws would be difficult to pass without a supermajority or without eliminating the filibuster. The opposition party would be unlikely to support a law over which the Supreme Court had no jurisdiction. Another weakness is that if a law can be passed stripping jurisdiction, a new law can be passed reinstating it.
The battle for the Supreme Court is not over, but we can breathe easier that Joe Biden is not anxious to pack the Court. As with many issues in our divided era, reform proposals are much easier to make than to push through Congress. This is especially true of sweeping changes and constitutional amendments.
The difficulty in making changes is what the Framers intended and is a feature, not a bug, of our system. That does not stop both parties from desperately trying to find shortcuts rather than following the constitutional guidelines.
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