Law & the Courts

Voters Deserve to Know Where Joe Biden Stands on Court-Packing

Democratic presidential nominee Joe Biden participates in the first 2020 presidential campaign debate with President Donald Trump in Cleveland, Ohio, September 29, 2020. (Jonathan Ernst/Reuters)

When invited at the first presidential debate to confirm whether he hoped to expand the Supreme Court in order to pack it with Democrats, Joe Biden explained that he would not entertain the question. “Whatever position I take,” Biden said, “that will become the issue . . . I’m not gonna answer the question.”

This would have been a preposterous answer from a presidential candidate had the topic been the future of the Post Office. But that Biden believes he can get away with it on a topic as explosive as blowing up the Supreme Court is nothing short of remarkable. Despite his low-key campaign, it remains the case that Joe Biden is running for president of the United States, and that he had elected to take part in a televised event during which he was expected to take positions and address issues. That his taking a position would become “an issue” in the election is almost certainly true. But that does not represent a bug within the system, but a feature. Americans of all persuasions deserve to know whether Biden is on-board with what would be the most radical reform to our system of government since the Second World War. This is not one of those “pass it to find out what’s in it” situations.

We suspect that if Donald Trump were proposing to amend the 1869 Judiciary Act in order to install a set of friendlier judges on the nation’s highest court, the problem with the idea would be evident to almost everyone. But one does not have play “imagine if” in order to grasp just how appalling a notion this is. Up until now, it has been tried only once in American history, by a newly reelected Franklin D. Roosevelt. Despite Roosevelt’s party controlling 74 of the 96 seats in the Senate and 334 of the 435 seats in the House, it failed. The Chairman of the House Rules Committee called it “the most terrible threat to constitutional government that has arisen in the entire history of the country.” This “measure,” wrote the 1937 Senate Judiciary Committee, “should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

From Joe Biden, a simple “no” would suffice.

Why does Biden not offer that answer up? After all, if he were to reject the idea, there would be no “issue” to discuss.

The first possibility is that Biden is secretly in favor of the scheme, but that he is smart enough to know that to acknowledge as much would destroy the “return to normalcy” argument for his candidacy, undermine his reputation as an institutionalist, and severely hurt him in the upcoming election. If this is the case, then Biden is a dangerous Manchurian candidate. Court-packing is a damaging enough proposition when advanced openly. But for a presidential candidate to refuse to answer in the hope that he could turn around after an election and, with a razor-thin majority in the Senate, both abolish the filibuster and pack the Supreme Court would represent a political deception of historic proportions.

The second option is that Biden understands that the proposal is ridiculous but does not want to upset a Democratic base that is already lukewarm about his nomination. Back when he was happy to answer questions on the topic, Biden confirmed that he “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.” This argument is the same today as it was last year, but Biden’s party is not. His own running mate supported court-packing during the primary. Voters deserve to know on which side of the growing divide the Democratic candidate stands.

There are some questions in American politics that require a reflexive, emphatic, uncomplicated answer. “Will you accept a peaceful transfer of power?” is one. “Will you pack the Supreme Court?” is another. That both candidates for the highest office in the land are struggling to answer such inquiries without meandering non sequiturs or craven demurrals is a disgrace. Yes or no, Joe? There’s no room here for malarkey.

The Editors comprise the senior editorial staff of the National Review magazine and website.

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