Will Biden Pack the Supreme Court? ‘Nothing Is Off the Table’

By David Wagner | January 16, 2021
David Wagner is a University of Manitoba graduate with a Bachelor of Arts in Religion in Sociology. He is interested in the psychology of religious and ideological belief and the relationship between religions and the state in totalitarian countries.
President Donald Trump has filed a lawsuit in the United States Supreme Court asking that it declare Wisconsin’s presidential election as “unconstitutional.”
Trump filed a case in U.S. Supreme Court to void Wisconsin's election result. (Image: pixabay / CC0 1.0)

With President-elect Joe Biden set to take over The White House next week, the question of expanding and packing the Supreme Court is a rising concern across the political spectrum. President Donald Trump’s move to quickly insert a conservative replacement for liberal Ruth Ginsburg sparked outrage among progressives back in September 2020, leading to the idea of packing the court.

Supreme Court Justice Ruth Bader Ginsburg passed away on September 18, 2020. As her replacement, Trump nominated Amy Coney Barrett, who was fast-tracked and confirmed by a 52-48 vote. She took her seat on Oct. 27, giving a 6-3 conservative edge to the Supreme Court, leading to outrage among many on the left. 

“Nothing is off the table. The legitimacy of the court and our democracy is at stake,” said Vanita Gupta, one of president-elect Joe Biden’s Department of Justice (DOJ) nominees. Senate Minority Leader Chuck Schumer expressed the same sentiment, saying: ‘‘Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table.’’

Democrats had hoped the decision for Ginsburg’s replacement would be delayed until the Biden-Harris team took over, but they were destined for disappointment. 

Amy Coney Barrett Associate Justice. (Image: Getty Images)

Many Democrats have claimed that Trump’s selection of Barrett was undemocratic and lacked legitimacy. Protests and rallies were held in front of the Supreme Court prior to Barret’s taking over the role in October 2020. 150 civil rights and public interest groups opposed Barrett’s Supreme Court confirmation, with concerns about the devout Catholic’s attitude toward health care, criminal justice, and reproductive and LBGTQ rights.  

Gupta and Schumer, along with many other Democrats, felt that the right thing to do would be to “pack” the Supreme Court by expanding the number of Supreme Court Justices. 

The Supreme Court has consisted of one Chief Justice and eight Associate Justices for 151 years. In 1937, President Franklin Delano Roosevelt proposed expanding the Supreme Court from 9 to 15, but was criticized by both parties and his Vice President John Nance Garner. 

In 2019, Ginsburg herself said that she thought it was a bad idea when Roosevelt tried to expand the Supreme Court back in 1937. She said: ‘‘if anything would make the court look partisan, it would be that.’’

Before the election, Biden said that he would appoint a bipartisan commission to consider the Supreme Court reforms

Since then, Biden has been hesitant to speak on the matter — his transition team did not respond to Breitbart’s recent request for comments on the issue. The Associated Press claimed: “Biden, who ran a relatively centrist primary campaign and spent 36 years in the Senate, is concerned that such moves would worsen divisions during a particularly polarized moment in American history.”

Another of Biden’s concerns is that of retribution; the next time Republicans are in control of congress and the Whitehouse, they may also seek to increase the number of Supreme Court Justices, leading to a potential cycle of expansion. 

Biden said: ‘‘I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.

‘‘I 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.’’

Time will tell whether, when he takes office, he will hold true to this stance or be swayed by the progressives. 

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