This has been bouncing around in my head and I had to write it down to get it out. Have at it.
– How I would respond to the question about packing the court if I were Biden. –
To begin, it’s important to understand that the court has already been packed and that many in the Senate are trying to pack it even more. “Packing the court” means adding more justices than one would customarily be able to and doing so for partisan advantage. If normal custom had been followed, Garland’s nomination would have been considered in 2016 and the Senate would not now be rushing through confirmation hearings for Barrett. Both of these cases are highly uncustomary and clearly done for partisan advantage on the court. Through these maneuvers, Republicans have been able to add more justices to the court over the last four years than they would customarily have been able to, three rather than one. Of course, one can respond that while uncustomary, these cases are both legal. However, if mere legality is a sufficient defense, then there can be no real objection to adding even more justices; the law does not require a specific number.
Packing the court is dangerous because it undermines confidence in the court. from the citizenry and from the other branches of government, thus undermining its ability to act as an impartial arbiter of the law. Without that confidence, the court is impotent. It can make judgments but it must rely on the other branches to abide by and enforce those judgments – it has no independent enforcement ability. More than any other institution, the Supreme Court relies on trust, respect, and custom in wielding its constitutional powers.
The court has been packed, the question is how to respond to that packing. This is a difficult problem. In broad strokes, one can either accept the current packing or one can try to mitigate it. Both are hazardous. Merely accepting the packing that has been done leaves half the nation believing that the court is now a partisan tool that acts against their interests. Trying to mitigate the packing risks having the other half of the nation feel similarly. What we need is for a large majority of Americans to feel that they can trust the court to impartially interpret the law rather than to act as a tool for one party or the other. It is not at all clear how to achieve that goal from our current position.
I am committed to restoring trust and respect to the Supreme Court just as I am committed to restoring trust and respect to the Presidency. All Americans deserve to feel that BOTH of these institutions are working for them and not merely to consolidate partisan power. While I have many ideas about how to accomplish this goal with respect to the Presidency, I do not yet know how to do so with respect to the court. In part, that answer will depend on how much damage is actually done before I am inaugurated. I am still hopeful that my friends and colleagues in the Senate will reconsider and not continue to pack the court. I am even more hopeful that they will not try to pack the court even further in the months between the election and the inauguration. Once I am President, I will assess the damage that has already been done and will work to ensure that the US court system has the trust and respect needed to carry out its constitutional duties effectively. At this time, I am not going to prejudge the outcome of that assessment nor speculate what steps will be necessary to restore trust after the current packing of the court.