Topline

As a second-term senator in 1983, Joe Biden called former President Franklin D. Roosevelt’s court packing proposal a “bonehead idea,” but 38 years later as president, Biden created a commission to study the Supreme Court and some Democrats are forcing Biden’s hand by introducing legislation to expand the Supreme Court from nine to 13 justices. 

Key Facts

Court packing became a more-mainstream Democratic objective after Republicans refused to give a hearing to Merrick Garland, former President Barack Obama’s nominee to replace Antonin Scalia on the Court, in 2016 ahead of the presidential election. 

Court packing separated the Democratic field of candidates in 2020: Now-Transportation Secretary Pete Buttigieg championed the idea of expanding the Supreme Court to 15 justices, while Biden told reporters in 2019 that he was “not prepared to go on and try to pack the court, because we’ll live to rue that day.” 

Biden’s position started to change though, after former President Donald Trump made clear he intended to nominate, and then-Senate Majority Leader Mitch McConnell intended to confirm, a justice to replace the late-Ruth Bader Ginsburg just weeks before the 2020 election. 

During Biden and Trump’s first presidential debate in September, Biden refused to tell voters if he would support expanding the Supreme Court, and then clarified in an interview that if elected he would create a commission that would give “recommendations as to how to reform the court system” because it was “getting out of whack.” 

On April 9, Biden convened a 180-day study on the effects of expanding the Supreme Court.

Key Background

Fifty-eight percent of registered voters said Democrats shouldn’t expand the court in an October New York Times/Siena College poll, and 47% of registered voters said the same in an October Washington Examiner/YouGov poll. But support for court expansion increased among Democratic voters after Senate Republicans confirmed Justice Amy Coney Barrett just weeks before the presidential election. (In 2016, Senate Republicans said they would not give Obama’s nominee a hearing because the Court vacancy occurred during the year of a presidential election.) The Supreme Court has changed sizes several times since it was established by the Judiciary Act of 1789 with six justices. In 1801, President John Adams reduced the number of justices to five, and then President Thomas Jefferson expanded the court to seven justices in 1807. President Andrew Jackson added two more justices, bringing the total to nine, in 1837 and the Court briefly had 10 justices during the Civil War. The Judiciary Act in 1869 set the limit back to nine justices, but there’s no Constitutional provision that limits how many justices can sit on the Court. 

Crucial Quote

“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,” Biden said during the October 2019 Democratic primary debate.

Chief Critic

House Speaker Nancy Pelosi (D-Calif.) said Thursday she does not support the current court packing legislation and won’t bring it to the House floor for a vote. 

Tangent

Progressive groups are not just lobbying for court expansion. A new effort to pressure Justice Stephen Breyer to retire has gained momentum in recent weeks, but White House Press Secretary Jen Psaki said Biden will not discuss the situation with Breyer. Breyer is 82 years old. 

Further Reading

Progressives In Congress To Introduce Bill Expanding Supreme Court From 9 To 13 Seats (Forbes) 

Biden unveils commission to study possible expansion of Supreme Court (Washington Post)

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