To Pack or Not to Pack?

By Phoebe Weinstein '22

To approach the question of Presidential Nominee Joe Biden packing the courts, we must deconstruct the answer into three comprehensive components: 1) Could he? 2) Do I want that to happen? 3) Should he?

Let’s begin with 1) Could he? Theoretically, yes. If elected president, Biden would have to keep Democrats in control of the House of Representatives and overtake the Senate, reversing the heavily Republican rhetoric of the last four years of government, to achieve majority votes in favor of Court-expanding legislation and subsequent justice appointments. The election of 2020 itself could still go either way; the other requirements for this action are likely a long way off and the chances of success difficult to predict. The Supreme Court has expanded multiple times—in 1863, at ten justices, in 1866, to seven justices, and in 1869, resting at nine—but not for a long while. Biden is an experienced politician with a favor for the traditional structures; he hasn’t committed to expanding or not expanding the Supreme Court.

Next, 2) Do I want that to happen? Short answer: yes. My political beliefs align far more with Biden’s platform than with those of President Donald Trump. I would prefer decisions that I consider fairer and representative of Americans and would therefore prefer a diluting of the conservative vote. I believe that the current justices do not necessarily represent America’s youth or the values of many Americans, especially minorities. Keeping justices appointed all their lives leaves us with obsolete decisions being made in the Court. I also believe that to pack the Court in favor of more Democrats would dilute the conservative vote, which would effectively further depoliticize the Supreme Court simply by balancing the political representation a bit more and trying to neutralize the decisions.

3) Should he? This is the most complicated question for me to answer because, as I mentioned, I align much more with Biden’s platform than Trump’s. To respond as politically bipartisan as possible, no, I do not think, if elected to the presidency, Biden should pack the Court. The Supreme Court’s system of appointment is deeply flawed. In my opinion, judges should rotate; lifetime appointment sets this country up for misrepresentation and outdated judgments. Packing the courts also delegitimizes the Court. The late Justice Ruth Bader Ginsburg and Senator Bernie Sanders (D-VT) both spoke out in opposition of packing for similar reasons. The most recent Supreme Court Justices by Trump were appointed amidst extremely partisan, polarized, and divisive conditions. The legitimacy of Trump’s presidency has itself been called into question—especially regarding the popular vs. electoral vote—and the Supreme Court appointments were barely approved.

Essentially, I would hope that the unfair circumstances of Trump’s appointees would be balanced out by Biden’s Supreme Court-packing. However, this further delegitimizes the Supreme Court; this is a broken system. On first thought, I would want Biden to pack the Court. Upon further contemplation, I can’t politically support it. Ideally, however, I would hope to change the system in other ways.