In the interview, Biden said: “There’s a number of alternatives that are—go well beyond packing. […] The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.” So on the “packing” thing, he needs to do some work. Talking about it as “balancing,” if not “expansion,” is a better way to address it. But it doesn’t hurt to get people used to hearing “expansion” and internalizing it—then it won’t seem like a radical thing when it happens.
But six months, 180 days, is far too long for Biden and a likely Democratic Senate to wait to act. There are going to be massive actions that have to be taken in the first month of Biden’s term to start fixing what Trump has wrecked, and there’s going to be absolutely vicious opposition to it in the Republican states. The first place they’ll go is the Republican-friendly courts, and they’ll act swiftly and not on merit. If Republican courts gave a damn about the merits of any political case, the challenge to the Affordable Care Act wouldn’t be in front of the Supreme Court right now.
The Supreme Court is also getting into the habit of acting quickly and dangerously right now. They’ve made it clear that voting rights are going to be history in a 6-3 Roberts court. The Alabama voting rights case, which was simply about voters being able to hand off their ballots curbside during this pandemic, proves it. As David Nir wrote, it’s “truly heartbreaking.” The lower court heard from Harold Porter, a Black man in his 70s who suffers from asthma and Parkinson’s Disease. “[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that—we’re past that time,” he told the court, and it agreed with him. The Supreme Court’s five conservatives didn’t.
That happened within about a month’s time. More than six months is far too long a period to give the Federal Society and the courts it has commandeered, including the SCOTUS, for their anti-democratic, minoritarian rule mischief. Hell, look at how fast they moved on Amy Coney Barrett—Ruth Bader Ginsburg had not even been buried yet when Trump was having the Barrett superspreader event at the White House. There was extremely scant outcry against that atrocity from conservative court-watchers, and there sure as hell was no one there to say “slow down.”
Speaking of conservative court watchers, that’s the other part of Biden’s commission to be watchful of. Putting a Federalist Society type on the commission for the purposes of “balance” would be disaster. Listen to scholars like Lawfare’s Quinta Jurecic and Susan Hennessey, who write that “if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court.”
If the commission is just Biden’s way to get there and to show that he’s taking a thoughtful approach to the issue ahead of this election, great. It’s a smart approach—it’s just one he shouldn’t feel absolutely wedded to when reality hits on Jan. 20.