Biden's new plan for the Supreme Court sounds like a disaster in the making

Biden's new plan for the Supreme Court sounds like a disaster in the making
Joe Biden // Credit: Official White House Photo by Pete Souza
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Former Vice President Joe Biden on Thursday finally fleshed out his answer on the question of court-packing, which he had studiously avoided following the death of Supreme Court Justice Ruth Bader Ginsburg.

While his strategic silence had given hope to some who favor expanding the size of the Supreme Court, his new remarks are much more concerning.

"If elected what I will do is I'll put together a national commission of -- bipartisan commission of -- scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack, the way in which it's being handled," Biden said in a clip of an interview with CBS's "60 Minutes."

"And it's not about court packing," he continued. "There's a number of other things that constitutional scholars have debated and I've looked to see what recommendations that commission might make."

This answer has some virtue. It finally gives Biden a solid answer to a question he seemed to be dodging, which may put him on slightly firmer ground when talking about the issue. To the extent voters are looking for measured, moderate proposals from a presidential candidate, it may offer some reassurance. Most of all, it helps take the issue off the table for him for the next two weeks, allowing for him to focus on issues where he thinks he's strongest: fighting the pandemic and uniting the country.

But that's where the advantages end. As a substantive plan, it could well be a disaster.

The problem is that Biden, along with many other establishment Democrats, doesn't seems to quite realize how dire a threat a 6-3 conservative majority on the Supreme Court poses. On a wide range of progressive issues, including abortion, Obamacare, voting rights, environmental regulation, immigrants' rights, freedom from religion, consumers' rights, workers' rights, LGBTQ rights, and D.C. statehood, the right-wing court could prove to be an immovable impediment. And on any number of obscure issues of statutory interpretation, a conservative court could find creative ways to thwart Democrats' policy goals and electoral ambitions. This is a five-alarm fire for the progressive agenda.

That's why many have concluded that expanding the court is necessary. Previous congresses have changed the size of the court many times, and it is clearly entirely constitutional. Republicans will doubtless cry foul, but so what? The era of hyperpartisanship has reached the court, as it always inevitably would. Unilateral surrender is not a reasonable option in the face of a court that will be bent on undermining the will of the majority of voters on countless issues.

The problem with a commission that Biden suggests is that it's also unlikely to see things this way, precisely because they're bipartisan. This commission will not be inclined to suggest a plan the results in a partisan advantage for the Democrats — indeed, it seems designed to intentionally avoid such a result.

The idea of depoliticizing the court, in theory, would be a good one. There are several ways people have imagined restructuring and constraining the court that would lower the stakes of the partisan fights over the judiciary: term limits, jurisdiction stripping, leaving the court with an even number of justices, supermajority requirements for striking down legislation. These ideas could be a boon for the country, because they would allow the main partisan fights to take place in the elected branches of government, as they should.

But here's the problem: There's no guarantee that any of the ideas to depoliticize the court would themselves be constitutional. And who would get to decide if the plan is constitutional? The court itself. It's hard to believe the conservative-majority Supreme Court would be willing to cede its power to a dispassionate plan to depoliticize the court; certainly, a Democratic president shouldn't bet the progressive policy agenda on it happening.

The commission may end up recommending that the United States adopt a new constitutional amendment to reform the court, circumventing the need for the court's approval. But this runs into a very similar problem. Many Republicans across the country would have to get on board to pass a constitutional amendment, and there's no reason to believe they would when they've already secured the Supreme Court of their dreams.

That leaves expanding the court as the best option. But having the commission and an alternative (if futile) recommendation in place would likely undermine any effort by Democrats to add new progressive justices, because critics would wail that Biden's own commission was being ignored.

The predictable process of the commission would also eat up valuable time. Fighting over expanding the court and appointing new justices would be extremely controversial, so if Biden gets elected, he would be best off pushing through this fight as soon as possible. It might be unpopular, but it could be necessary to enacting the rest of his agenda, much of which is popular. If he backloads all the popular policies into the second half of his first two years in office, he may stand a chance of avoiding the midterm backlash that often comes along with a new administration. If he were to keep majorities in Congress after 2022, he could have a full four years as a productive, legislating president — potentially surpassing President Barack Obama's achievements in his first term.

Critics of court-packing often say that the tactic will only result in a tit-for-tat partisan competition, and Republicans will simply expand the court once they have full control of Congress and the White House. But an expanded court could allow Democrats to push through a series of pro-democracy reforms, which would make it harder for the current radicalized GOP to maintain power without moderating its most extreme views. And Democrats can also just accept that a continuous tug-of-war for control of the Supreme Court is a reasonable alternative to living with a conservative-dominated court that could crush any of the party's best plans for the country.

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