If Democrats control Congress and the White House in 2021, will they pack the Supreme Court with additional progressive justices?
Following the death of Justice Ruth Bader Ginsburg and the efforts of the Senate GOP majority to fill the vacancy, it may be the most important question facing Democrats in 2020. But it’s a question only a few Senate Democrats are willing to answer.
Massachusetts senator Ed Markey tweeted on September 21: “This Republican hypocrisy is shameful but not surprising. If they violate their own precedent, we must expand the Supreme Court.” West Virginia senator Joe Manchin, the most conservative Democrat in the Senate, told CNN on Sunday that he “can’t support” court-packing.
But most Democratic senators have made it clear they don’t want to reveal their intentions on court-packing until after the election. “What we need to do before we talk about what happens in the next session of Congress is for Democrats to win the presidency and a majority in the Senate,” Connecticut senator Richard Blumenthal told National Review in the Capitol last week when asked about court-packing.
Before voters go to the polls, should they get to know whether court-packing is likely or even on the table? “There are so many reasons to vote for Democrats now — that we need to focus on the pandemic,” replied Blumenthal, a member of the Senate Judiciary Committee. “You know, we just passed 200,000 deaths. The president’s failure to deal with the pandemic and the public-health and economic crises and his cruel and reckless indifference [are] costing lives.”
“I think we’ve got to wait to get through the election,” Pennsylvania Democratic senator Bob Casey said when asked about court-packing. “The key thing right now is people have to understand what’s at stake, especially on ACA and preexisting conditions.”
“No thoughts at the moment,” New Mexico Democratic senator Martin Heinrich replied when asked about adding justices to the Court. “We have a job to do before we have that conversation.”
California senator Kamala Harris, the Democratic vice-presidential nominee, dodged the question during an appearance on MSNBC on Monday night.
“If Judge Barrett is confirmed and the Democrats have control of the Senate next year and the White House and the House of Representatives, should the Supreme Court be expanded?” MSNBC host Lawrence O’Donnell asked Harris.
“You know, let’s, I think that — first of all — Joe has been very clear that he is going to pay attention to the fact, and I’m with him on this 1,000 percent — pay attention to the fact that right now, Lawrence, people are voting,” Harris replied. She said that the winner of the November presidential election should fill the current vacancy, but she never said a word about what a Biden-Harris administration would do on court-packing.
It’s not clear how likely court-packing would be if Democrats have unified control of Congress and the White House in 2021. It’s obviously more likely in a Senate with 54 Democrats than a Senate with 51 Democrats. If they are unwilling to say before the election that they will pack the courts, they will not be able to say in 2021 they have a mandate to do so. And it’s worth remembering that Franklin Delano Roosevelt tried and failed to pack the Court when Democrats held 76 out of 96 Senate seats and 334 out of 435 House seats. (The pressure did famously result in one justice’s beginning to rule favorably on the New Deal — the “switch in time saves nine.”)
If Democrats do add justices to the Court, it guarantees that Republicans would do the same the next time they control Congress and the White House. In October 2019, Joe Biden said: “I would not get into court-packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the Court has at all.”
But since the death of Ruth Bader Ginsburg, Biden has repeatedly refused to state his position on court-packing. “It’s a legitimate question,” Biden said last week. “But let me tell you why I’m not going to answer that question. It will shift the focus. That’s what [Trump] wants. Let’s say I answer, then the whole debate’s gonna be about what Biden said or didn’t say. Biden said he would or wouldn’t.”
Asked again about court-packing on Sunday, Biden said: “I know you’re going to be upset with my answer. But what I’m not going to do is play the Trump game — which is a good game he plays — take your eye off the issue before us. If I were to say yes or no to that, that becomes a big issue.”
Given how transformative court-packing would be to our system of government, it’s not clear that Biden and Senate Democrats will be able to get away with that non-answer over the next month.