Democratic Presidential Candidate Joe Biden has twisted himself into a verbal juggernaut over appointments to the United States Supreme Court. Despite precedent establishing the normalcy of Judge Amy Coney Barrett’s nomination to the Supreme Court, Biden has repeatedly stated that the process should not go forward until the voters have had their say in November. Yet, Biden has refused time and again to answer whether he would pack the Court should he be elected, and last week stated he would delay announcing his position on packing the Supreme Court until the day after the election. Asked directly if voters deserve to know whether he would pack the Supreme Court, Biden responded: “No, they don’t deserve” to.
According to Vice President Biden, the voters don’t need to know whether he would fundamentally restructure the federal government by adding Supreme Court justices. Voters apparently have no right to weigh in on a plan to upend constitutional norms and pack the Supreme Court with the extra votes needed to obtain certain results.
For over 150 years, the Supreme Court has had nine members. And aside from President Franklin D. Roosevelt’s ill-conceived plans to stack the bench with judges sympathetic to New Deal legislation, that number has remained unchallenged. For good reason: members of President Roosevelt’s own party opposed his court-packing plan because of its deleterious effect on judicial independence. Adding justices to the Court to get a certain result undermines the separation of powers and eliminates the judiciary as an effective check on the legislative branch.
Further, public opinion is decidedly against court packing. A 2019 poll found that only 27% of respondents supported adding justices to the United States Supreme Court.
Vice President Biden should answer whether he has plans fundamentally to reshape that institution by adding justices and undermining constitutional separation of powers principles. The voters do deserve to know.