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.

Most Popular

Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More
Media

About That ‘Uncoverable’ Biden Story

Journalists claim they can’t cover the New York Post’s Hunter Biden email scoop because the underlying evidence has yet to been verified. Also, they won’t look for any verifying evidence because there isn’t enough evidence. It’s quite the conundrum. Because other than the now-corroborated emails, ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
White House

Hell, Yes

Editor’s Note: If you would like to read more pros and cons on voting for President Trump, further essays on the subject, each from a different perspective, can be found here, here, here, here, and here. These articles, and the one below, reflect the views of the individual authors, not of the National ... Read More
Economy & Business

Daylight Savings Forever

Before I became a parent, I didn't have especially strong feelings about the time shifting by an hour twice a year. Like most people I was aware of the downsides -- increased car accidents, schedule confusion, etc. -- and I figured it would be better to knock it off. But I didn't feel personally offended by ... Read More
Economy & Business

Daylight Savings Forever

Before I became a parent, I didn't have especially strong feelings about the time shifting by an hour twice a year. Like most people I was aware of the downsides -- increased car accidents, schedule confusion, etc. -- and I figured it would be better to knock it off. But I didn't feel personally offended by ... Read More
Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More
Elections

Late Campaign Stops Don’t Seem to Do Much

Growing up in New Jersey, we called nights like tonight – where there were expectations for hooliganism -- vandalism, breaking windows, and perhaps even arson, “Mischief Night.” In Detroit, they called it “Devil’s Night.” In 2020, Americans just call it “Friday.” On the menu today: wondering ... Read More

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More

Another Pollster Sees a Trump Win

The Trafalgar Group’s Robert Cahaly is an outlier among pollsters in that he thinks President Trump will carry Michigan, Pennsylvania, or both, and hence be reelected with roughly 280 electoral votes. (I explained his thinking here.) Last week another pollster, Jim Lee of Susquehanna Polling and Research, ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More

Searching for a Sign

I’ve been waiting for almost six months to see a Biden-Harris yard sign in my neighborhood. Finally one -- just one -- appeared about two weeks ago. It is large and proud. The homeowners even equipped it with a spotlight, so that it is visible at night. I’m surprised, because liberal political yard signs ... Read More