The Corner

Law & the Courts

Biden, Court-Packing, and Constitutional Norms

Democratic presidential nominee Joe Biden speaks during a campaign appearance in Pittsburgh, Pa., August 31, 2020. (Alan Freed/Reuters)

The other day, C-SPAN’s Howard Mortman flagged a clip from April 2005 in which then-Senator Joe Biden attacked FDR’s court-packing plan. That clip comes from a bigger speech defending the filibuster and attacking the “nuclear option.” There is some obvious element of partisan interest in Biden’s 2005 speech; seeking to give Democrats cover for the sustained filibustering of some of George W. Bush’s judicial nominees, Biden appealed to wider principles of limiting the power of the majority, the Senate as a deliberative body, and so forth. Sometimes, though, the appeal to principle can be the tribute partisan interest pays to constitutional hygiene.

Biden’s remarks — which he collaborated on with various constitutional law professors — reveal the following understanding: The standing Senate rules, the filibuster, and other prerogatives for individual senators greatly weaken the ability of partisan discipline to control the Senate. Unlike the House, in which the majority-party leadership has sweeping power, the Senate is much more diffuse. This makes it much harder for the Senate to be merely a partisan appendage of the White House when the presidency and the Senate are controlled by the same party. As 2005 Biden and other defenders of the standing Senate rules have argued, the procedural norms of the Senate play an important constitutional role in checking the presidency and ensuring the independence of the Senate.

The nuclear option, which is separate from the question of filibuster reform, undoes all that. It instead says that 51 votes can ignore Senate rules at whim. The whole architecture of the Senate — from committee assignments to the structure of floor debates — is premised on the assumption of consensus-based procedural norms and the Senate’s standing rules. Absolute rule by 51 votes risks, then, radically transforming the character of the Senate.

Biden also noted in 2005 that removing those procedural guardrails could in turn knock down other ones. Senate traditions of deliberation and consensus helped the chamber block Roosevelt’s court-packing plan. Perhaps even more than the nuclear option, court-packing would aggrandize the power of the presidency. The Senate Judiciary Committee’s blistering 1937 report on the court-packing plan found that such a scheme would risk “autocratic domination” and threaten the constitutional rule of law.

In light of the significant constitutional import of both these proposals, it’s striking that Biden now offers a variant of “no comment” when asked his opinion of them. President Trump generates justifiable controversy when he hedges about whether he’ll accept the results of the 2020 election, but something like court-packing also warrants a clear answer. Numerous Senate Democrats have also been evasive about their support for court-packing and the nuclear option.

In a constitutional republic such as the United States, the protection of constitutional norms is not only a matter of who sits in the Oval Office. It also involves the broader constitutional infrastructure. Since 2016, the Washington establishment that by and large opposes Donald Trump has wrapped itself in the banner of “democratic norms.” If it is serious about protecting those norms and not merely using them as factional talking points, it needs to demand clearer answers on some key constitutional issues and to attend to the bigger questions of institutional checks and balances.


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