This we know for certain: if Joe Biden wins the presidency and the Democrats capture the Senate, the Supreme Court will be restructured.
Candidate Biden has been coy about his plans. He has repeatedly refused to answer pointed questions about packing the Supreme Court. Now he has announced that as president he would appoint a commission to make recommendations after the election about how to reform the court system.
Don’t be fooled. All this is temporary political cover to obfuscate his intentions.
Vice President Biden is following FDR’s political playbook, and this time it might work.
President Franklin Roosevelt had complained that the Supreme Court was stuck in “the horse-and-buggy definition of interstate commerce” and so wouldn’t see to greenlight his New Deal programs.
Nevertheless, throughout the 1936 election, Roosevelt maintained a studied silence about his plans for the Supreme Court. While often pressed by the media and his political opponents, he consistently refused to answer.
But a year before the election — about the same time he publicly called court-packing “a distasteful idea” — FDR secretly instructed his Attorney General to assemble all possible plans to reshape the ideological balance of the Supreme Court. They considered a constitutional amendment (which would take too long) and jurisdiction stripping (not comprehensive enough) before settling on legislatively adding Justices to pack the Supreme Court with Roosevelt appointees.
“Wait until next year,” FDR privately told Treasury Secretary Henry Morgenthau in May 1936, “I am really going to be radical.”
Even after the election FDR refused to address direct questions about his plans to challenge the Supreme Court. He was mum about it in his inaugural address, and didn’t even tell his party’s legislative leaders the final details until it was announced in February 1937.
The Judicial Procedures Reform Bill FDR proposed would have added up to 50 new federal judges, created “proctors” so that the Supreme Court could better administer the lower courts, and allowed the president to appoint one new Justice to the Supreme Court for each one over the age of 70 years and six months, up to as many as six additional Justices.
Presented under the guise of judicial reform to help an overworked court system, everyone knew that the real objective was to secure judicial validation of the president’s political agenda.
As soon as the plan was apparent, public opinion opposed it. While 61% of Americans voted for Roosevelt’s reelection and Democrats had strong majorities in both the House and the Senate, numerous Gallop polls at the time indicated that the overwhelming majority of Americans opposed packing the Supreme Court.
FDR was disdainful: “We gave warning last November that we had only just begun to fight. Did some people really believe we did not mean it?”
Like FDR, Vice President Biden criticizes the Supreme Court and consistently refuses to answer questions about what he intends to do about it. At one point Biden said the American people “don’t deserve” to know his position on court packing, then later said they have “a right to know where I stand and they’ll have a right to know where I stand before they vote.” Now he has put it off to his commission reports after the election.
Let’s get this straight. Before being Vice President for eight years, Biden was in the U.S. Senate for 36 years, and was the top Democrat on the Judiciary Committee for 16 years. Does anyone honestly believe that he does not know what he plans to do here?
Like before, the clues are all around us.
The 2020 Democratic Platform calls for structural court reforms to counter the imprint of conservative appointments on the federal bench that have “undermined the legitimacy of our courts through an anti-democratic, win-at-all costs campaign” to fill the judiciary with “unqualified, partisan judges.” It proposes the creation of up to 78 new federal judgeships to “increase transparency and accountability.”
“Look, the only court packing is going on right now. It’s going on with the Republicans packing the court now,” Biden said in reference to the appointment and confirmation of Amy Coney Barrett to the Supreme Court, claiming “it’s not constitutional what they’re doing.”
"It's not about court packing," insists Biden about his own judicial commission. "There's a number of other things that our constitutional scholars have debated, and I've looked to see what recommendations that commission might make. . . . There's a number of alternatives that go well beyond packing."
Indeed, Joe Biden has said that he's "not a fan" of court packing — as had FDR. But it’s clearly the leading option. Perhaps he will take up the proposal of Bernie Sanders — who is against mere court packing — to rotate Justices off the Supreme Court to lower federal courts. Or a recent idea touted in the Yale Law Journal to elevate all 179 circuit judges to be Supreme Court Justices and then randomly select nine every two weeks to make decisions.
Regardless, the competing options shouldn’t cause us to miss the clear objective: to restructure the federal court system in order to “unpack” it of disagreeable appointments and make sure the Supreme Court does not stand in the way of the Democratic Party’s transformative political agenda.
The key difference between FDR’s failed plan and Biden’s pending plan explains why this time the strategy might well succeed.
Then, congressional leadership of the Democratic Party unanimously opposed FDR’s “judicial reform” as an executive power grab that threatened the independence of the Supreme Court and thus the whole federal judiciary. Judiciary Chairman Hatton Sumners (D-TX) blocked the legislation in the House. Judiciary Chairman Henry Ashurst (D-AZ) stopped it the Senate, warning that playing with the Court would allow presidents to “suppress free speech, free assembly, and invade other constitutional guarantees of citizens.”
Today, congressional leadership of the Democratic Party is actively pushing the idea. “This is long overdue court reform as far as I’m concerned,” says Senator Mazie Hirono (D-HI) of the Senate Judiciary Committee. “This is not something that a lot of us have not thought about.” The Democratic Chairman of the House Judiciary Committee has warned that if a Supreme Court nominee is forced through “Congress will have to act and expanding the Court would be the right place to start.” As Senator Chuck Schumer (D-NY) has said repeatedly: “If we win the majority, everything is on the table.”
Legislation already has been introduced in the House to allow new presidents (beginning in 2021) to add two new Justices and eventually (whenever the new Supreme Court exceeds nine members) move the longest-serving Justices to senior status.
So here we are on the cusp of an election, and voters do not know Joe Biden’s plan to restructure the Supreme Court.
Yet like Edgar Allen Poe’s Purloined Letter, it has been in plain view all along.
Candidate Biden just doesn’t want to spoil his presidential surprise: “You’ll know my position on Court packing when the election is over.”
Matthew Spalding is the Dean of the Van Andel Graduate School of Government at Hillsdale College’s Washington, D.C campus.