The court-packing question came up again during last week’s debate between Vice President Mike Pence and Sen. Kamala Harris. Pence pressed Harris: If the Democrats win the White House and Senate, will they increase the membership of the Supreme Court — that is, "pack" it — in order to dilute the 6-3 conservative majority that will be established if Amy Coney Barrett is confirmed?
Harris declined to answer the question. Candidate Joe Biden did the same the following day. And should there be another presidential debate, when the question comes up, Biden should continue to refuse to answer. The question is a disingenuous attempt to deflect attention from the more profoundly important issues connected to this election.
Increasing the size of the Supreme Court is an unsavory option, but it is not illegal or necessarily unscrupulous. Unfortunately, the idea is tainted by language — "packing" just sounds bad — and by President Franklin Roosevelt’s clumsy attempt to expand the court in 1937.
Nine is not a magic number designated in the Constitution. When F.D.R.’s New Deal policies hit roadblocks in the Supreme Court, he noted that the size of the court had varied widely since the nation’s founding: The court was established with six justices. In 1801 it had five. In 1807 there were seven justices. In 1837 it had grown to nine, and there were 10 in 1863. In 1866 the justices numbered seven, and in 1869, they were back to the current nine. (Note: My understanding of F.D.R.’s court-packing episode is informed by the subject’s treatment in H.W. Brands’ excellent biography of F.D.R., entitled "Traitor to His Class.")
Roosevelt believed that a too-conservative Supreme Court was wrongly derailing New Deal legislation meant to alleviate suffering during the Depression and provide for a fairer, forward-looking America. Many of the rejected measures are ones that we now take for granted, such as minimum wage laws and fair labor practices. His solution was to appoint additional justices who could adapt to the times.
Uncharacteristically, Roosevelt bungled his proposal, failing to convince the media, his fellow Democrats or the public. Fortunately, the court shifted on its own, obviating the need for enlargement. It began to rule in ways more consistent with a modern society. In March 1937, for example, it found, 5-4, that a Washington state minimum wage law was constitutional.
Ideally, Supreme Court justices should be chosen on the basis of their integrity, fairness and competence. Centrist candidates, such as Merrick Garland, deserve bipartisan support, which Garland received before President Barack Obama nominated him to the court during the last year of his presidency.
The problem with the current court is that it is already packed. Trump has publicly committed to nominate only justices who are ideological, who will overturn Roe v. Wade, for example. And that is precisely what he has done.
Republicans played the hardest of hardball with the Garland nomination, and in this game the Democrats have no obligation to take one of their most potent weapons off the table.
Anytime a politician won’t answer a question, it looks suspicious, providing a choice opportunity for an opponent to make political hay. But Republican criticism of Biden’s refusal is a glaring irony in light of the questions that both Trump and Pence refuse to answer. For example:
How does the Trump administration account for the deaths from Pandemic 2020 that far exceed those of comparable countries? No answer.
How, specifically, will the Trump administration provide for citizens with pre-existing health conditions? No answer.
Will the Trump administration commit to a peaceful transfer of power? No answer.
Are you, Mr. Trump, willing to publicly condemn white supremacists? Worse than "no answer": Trump shouldn’t have told the Proud Boys to "Stand back and stand by." He should have told them to "Disband!"
Strange, isn’t it? The Republicans manage to gain political traction by accusing Democrats of a willingness to violate a rule that doesn’t exist, while at the same time they refuse to answer questions about their flagrant violation of the rules, norms and laws that are the bedrock of our nation.
John M. Crisp is an op-ed columnist for Tribune News Service.