Why do Joe Biden and Kamala Harris refuse to give a straightforward yes or no answer when asked whether they intend to “pack the Court” and expand it to a number larger than the nine justices that have been on the Court for the past 150 years?
Because a considerable portion of the Democratic Party wants to expand the Court beyond nine. In a recent YouGov survey, 47 percent of registered voters opposed expanding the size of the Supreme Court, 34 percent supported it, and 19 percent responded they didn’t know how they felt. But self-identified Democrats were much more supportive: 60 percent wanted to expand the Court, 18 percent opposed the idea, and 22 percent didn’t know.
In late September, an ABC News/Washington Post poll found 54 percent of Americans oppose expanding the Court and 32 percent support the move. The survey found 45 percent of Democrats support expanding the size of the Court, while 39 percent oppose.
Democrats want to pack the Supreme Court because they believe that, until Ruth Bader Ginsburg died, the Court often split, with a barely tolerable 5-4 majority in favor of conservatives or Republicans in most decisions. They fear that, with Amy Coney Barrett becoming a justice, the Court will split 6-3 in favor of conservatives or Republicans in most decisions.
This thinking overlooks the fact that cases don’t always shake out along the expected lines. Any Democrats who think the Court always breaks 5-4 in favor of what the GOP wants should ask a grassroots conservative about Chief Justice John Roberts and Obamacare, and then stand back and brace themselves for a likely volcanic reaction. Just in the past few years, Roberts joined with the Court’s “liberals” to strike down a Louisiana abortion law, to bar the addition of a question about citizenship to the U.S. Census, and to block President Trump from immediately ending the Deferred Action for Childhood Arrivals program.
Justice Neil Gorsuch joined Roberts — and the liberal majority — in authoring a sweeping ruling that employers could not legally discriminate against gay and transgender people. And Justice Brett Kavanaugh sided with the Court’s liberals in a case about whether iPhone users can sue Apple over app-store prices and ordered a stay of execution for a Buddhist inmate in Texas over the state’s policies about who can be in the room during the moment of death. Kavanaugh and Roberts joined the liberals in declining to review cases that sought to block Planned Parenthood from receiving Medicaid funding.
Add it all up, and there are plenty of cases where the justices don’t decide the way they’re “supposed” to decide. A Supreme Court that is 6 to 3 in favor of conservatives on paper may not be 6-3 or even 5-4 in practice.
But the average Democrat thinks that, with Barrett on the Court, a majority will overturn Roe v. Wade and open the door to bans on abortion and block a significant portion of a Biden administration agenda — or, perhaps someday, a Harris administration agenda.
The overturning of Roe v. Wade would leave the decisions about the legality of abortion at any point during pregnancy in the hands of state governments. Many states, such as New York and California, would likely quickly pass laws ensuring the legality of abortion. Some states, such as Arkansas and Kentucky, would probably ban it in all or almost all situations. And a lot of states would enact some restrictions, such as bans on partial-birth abortion or parental notification laws, and leave it legal in other situations.
Pro-choice Democrats ought to see this as an opportunity. How many states would really want to enact sweeping restrictions once the Supreme Court gave them a green light? How many legislators and executives are pro-life in name only, and would flinch at the moment of decision? Ross Douthat, a pro-life columnist for the New York Times and contributor to NR, acknowledges that “the prospect of abortion bans might consolidate a true pro-choice majority, which would either codify Roe in legislation or else make liberal court-packing popular and usher in a few extra liberal justices with a mandate to affirm abortion rights.”
Biden himself declared that if Roe v. Wade is overturned, “the only responsible response to that would be to pass legislation making Roe the law of the land.”
As for the question of whether a Supreme Court with a Justice Barrett would prove an implacable foe of the Biden administration, we’ve seen the “conservative” justices disappoint pro-lifers, Obamacare foes, corporate America, and death-penalty supporters, and rebuke the Trump administration on immigration and the release of financial records. If a Biden administration cannot enact an agenda that is seen as consistent with the U.S. Constitution in the eyes of justices like Roberts, Gorsuch, and Kavanaugh, whose fault is that?
America’s think tanks, interest groups, universities, and policy wonks of every political stripe are constantly coming up with new ideas to tackle public problems. Vast numbers of those ideas would pass muster with the Supreme Court, even with a 6-3 “conservative” majority.
A Biden administration would have a buffet table of constitutionally viable options to shape the law and American life, even with a skeptical Supreme Court looking over its collective shoulder. The president controls the armed forces, an executive branch of 268 federal agencies as part of the cabinet and another 137 independent agencies, totaling more than 4 million American employees, spending roughly $4.7 trillion. The president appoints roughly 4,000 positions in the executive branch. The president enjoys broad powers for executive orders to direct federal agencies to take particular actions, has near-unlimited powers for pardons and clemencies, and nothing becomes federal law without his signature, except in the rare cases when a bill is passed by veto-proof legislative majorities. And Democrats fear that a conservative majority on the Supreme Court is going to somehow unfairly hinder a President Biden? Just how much more power does a U.S. president need?
A Biden administration must have policy options to prevent mass shootings beyond gun confiscation, as embodied by Beto O’Rourke’s “hell yes, we’re going to take your AR-15!” rallying cry. No one should be surprised by a Supreme Court majority that finds the Second Amendment bars federal-government confiscation of legally purchased firearms, without any probable cause to believe that firearm has been used or will be used in a crime.
Not every idea that pops into a president’s head is constitutional. This summer, Biden said that as president he would enact a national mandate to wear masks to prevent the spread of the coronavirus. But in September, Biden backtracked a bit, recognizing that such a move would appear to exceed the powers of the presidency: “There’s a constitutional issue whether federal government could issue such a mandate. I don’t think constitutionally they could, so I wouldn’t issue a mandate.” A week later, he backtracked upon the backtracking: “Well, the question is whether I have the legal authority as president to sign an executive order. We think we do, but I don’t — I can’t guarantee you that yet.” This is why we have a Supreme Court: to determine whether a federal law, executive order, or regulation is consistent with the Constitution.
Biden even recognizes that some of what he wants to do is unconstitutional, as the U.S. Constitution is currently written. He wants campaigns for public office to be entirely funded by the taxpayers, with no private donations whatsoever, which violates the First Amendment and would require a constitutional amendment. Credit Biden for at least recognizing that what he wants and what the Bill of Rights guarantees are in contradiction, and for advocating the passage of a new amendment banning private expenditures to elect candidates.
President Franklin Roosevelt’s Court-packing was resoundingly rejected — and then Roosevelt went back to work, with the Court as-is. (Some historians and legal scholars contend the Court took a more open-minded view of Roosevelt’s proposals after the Court-packing threat.) Life in a government built upon checks and balances and separation of powers means you can’t always get what you want, because you’re not supposed to always get what you want. A leader who always gets what he wants is a dictator.
Sometimes your fellow citizens will prevent you from enacting everything you want — either through an election to the executive branch, or elections to the legislative branch, or because a majority of the Supreme Court finds your idea violates the Constitution. A failure to understand that reflects a failure to understand the American system of government at its most basic level.
More from National Review
The Democrats’ Frivolous Three-Pronged Attack on Judge Barrett
Will Abortion Politics Sink Biden in the Democratic Primary?