Biden: I’m Not Going to Say Whether I’ll Try to Expand the Supreme Court

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Joe Biden, in a one-on-one interview with WBAY in Manitowoc, Wis., yesterday:

Question: If Trump’s Supreme Court pick goes through, but you win the election, Democrats take over Senate and maintain the House, would you consider adding more Supreme Court justices to the bench?

Biden: It’s a legitimate question, but let me tell you why I’m not going answer that question. Because it will shift the focus, that’s what he wants, he never wants to talk about the issue at hand, and he always tries to change the subject. Let’s say I answer that question, then the whole debate’s gonna be about what Biden said or didn’t say, Biden said he would or wouldn’t. The discussion should be about why he is moving in a direction that’s totally inconsistent with what Founders wanted. The Constitution says voters get to pick a president who gets to make the pick, and the Senate gets to decide. We’re in the middle of the election right now, you know people are voting now. By the time this Supreme Court hearing would be held, if they hold one, it’s estimate 30 to 40 percent of American people already have voted. It is a fundamental breach of Constitutional principle. It must stay on that and it shouldn’t happen.

Back in July 2019, Biden sounded pretty skeptical of the idea: “No, I’m not prepared to go on and try to pack the court, because we’ll live to rue that day.”

The size of the Supreme Court changed quite a bit in the first decades of the American government but has remained at nine for the last 151 years.

In early 1837, President Andrew Jackson was able to add two additional Justices after Congress again expanded the number of federal circuit court districts. Under different circumstances, Congress created a 10th circuit in 1863 during the Civil War, and it briefly had a 10th Supreme Court Justice. However, Congress after the war passed legislation in 1866 to reduce the Court to seven Justices. That only lasted until 1869, when a new Judiciary Act sponsored by Senator Lyman Trumbull set the number back to nine Justices, with six Justices required at a sitting to form a quorum.

The last time a president proposed expanding the Court, he lost that fight quite badly:

Franklin D. Roosevelt proposed a bill to expand the membership of the Supreme Court. The law would have added one justice to the Court for each justice over the age of 70, with a maximum of six additional justices. Roosevelt’s motive was clear — to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation. As a result, the plan was widely and vehemently criticized. The law was never enacted by Congress, and Roosevelt lost a great deal of political support for having proposed it.

What is striking about Biden’s position is that he might expand the court, he might not, but that he’s not willing to talk about it, and the American people aren’t allowed to know if his thinking has changed, because “it will shift the focus.”