No matter how many times Donald Trump flaps his gums about healthcare, the fact is that he has no plan. In fact, in the 10 years since the Affordable Care Act was signed, Republicans didn’t bother to actually design an alternative. Why should they? After all, going into the 2020 election, the Republican Party literally did not bother to write a platform. What does the Republican Party stand for? Nothing. Or … anything. But the complete lack of any plan on the part of Trump and the GOP has paled in comparison to the focus that’s been placed on a single question being delivered to Joe Biden: Will he consider expanding the Supreme Court if he is elected?
At his town hall event, his highly rated town hall event, on Thursday night, Joe Biden promised to give Americans a more definitive answer on the question of adding more seats to the Supreme Court before the election on Nov. 3. It’s unclear how much the impact to that question will affect the outcome of the election. It’s absolutely clear that the media will not stop pounding this one issue from the candidate who has released every tax return of his adult life and provided hundreds of pages of detailed policy proposals.
So, just what will Biden say when he answers this question, and what should he say?
The term “court packing” was coined by opponents of a judicial reform bill proposed in 1937 by Franklin Roosevelt. While it’s often presented as if that bill would have filled the Supreme Court chambers with a football team worth of justices, in fact it would have allowed the president to appoint justices for for each seated justice over the age of 70, up to a maximum of six justices. The idea was that, since Supreme Court seats are for life, it’s very easy to end up with a room full of people whose ideas are generations out of synch with either the ideas or needs of the nation. See ,,, just about every Supreme Court ever. Roosevelt’s opponents successfully vilified the idea, and the bill was ultimately stalled in the Senate. However, just raising the idea seemed to get the conservatives-laden court to suddenly shift its ideas on significant rulings, such as deciding that a minimum-wage law was not unconstitutional after all, despite what it had ruled just one year earlier.
Roosevelt’s bill may have failed, but the official size of the court has changed at least seven times, sometimes with no more lofty goal than specifically allowing a new president to appoint more justices. In fact, it’s been done the other way, as well. In 1801, Congress cut the size of the court from 6 justices to just 5, expressly to prevent Thomas Jefferson from making any appointments.
In fact, the Court has gone down as many times as it has gone up. From 1863 to 1866, there were actually 10 Supreme Court justices. Then Congress trimmed that all the way back to 7 with the goal of eliminating justices from Southern states. Then just three years after that, Congress stepped in again to raise it to the current level of 9 justices, following a restructuring of federal courts.
So what could Biden do? Honestly, just about anything. The Constitution calls for a court, but has nothing to say about how many people sit on that Court. But here are a couple of options that should appeal to Republicans that demand “original intent.”
Why George Washington would want 26 justices
The original understanding of how to structure the court was that there should be two justices for each federal circuit court. There were three such circuits in 1789, which is how the United States ended up with six justices. Since there are thirteen such circuits today, we should have … 26 justices. Isn’t that right, Amy Coney Barrett?
The case for 16 justices
That idea of two justices per circuit didn’t stick around long because legislators in the original 13 states were reluctant to share the judicial branch with those upstarts in new states. When a new circuit court was added in 1807 to cover Kentucky, Ohio, and Tennessee, just one new seat was added to cover them. If that’s the precedent, then there should be 16 justices—six for the original three circuits, and one each for all those added later.
Or why not just … lop off Gorsuch, Kavanaugh, and Barrett
Forget packing the court. A real originalist might argue that the proper number of Supreme Court justices is right where it started, with just six seats. When the Court was cut from six to five in 1801, Jefferson-haters didn’t actually try to boot a justice. They were more concerned that they block Jefferson from getting a chance to name anyone new.
Also, there was something of a constitutional issue. While the Constitution doesn’t set a number of justices, it does prohibit reducing the salary of a serving justice. So kicking someone to the curb would likely have been out. When the big chop from 10 to 7 was made in 1866, that issue was still problematic. So instead of actually removing justices, they just waited for retirements and did not fill them. In fact, the Court never really got down to just seven members. There were still eight justices serving when the law was changed again to put the number back to nine.
But that law in 1869 did something else besides. It also provided that justices can have a pension when they leave the court, something that had previously been lacking. That change pointed out a simple remedy for removing justices without violating the constitutional limits on pay—keep paying them. Cutting Gorsuch, Kavanaugh, and Barrett a check each year would be a small price to pay for having their voices removed from the bench. And just think of all the beer.
But what should Biden really say?
If Amy Coney Barrett can insist she can’t even speak to existing laws, or confirm items that are in the Constitution, then there’s no reason Joe Biden has to say anything. But assuming that he does, the answer is: As little as possible.
Biden can point out that the court has already been packed by Republicans who have seated 15 justices in the last 50 years, a period in which Democrats have only named four. If that had all occurred as a coincidence of when Justices happened to die, it would be one thing. It hasn’t. Not only has there been deliberate manipulation of openings by a Republican Senate that refused to give a hearing to a nominee from a Democratic president, there also has been more than one occasion of direct coordination between the Republicans on the court and sitting justices, as happened when Justice Kennedy negotiated his own retirement to give Trump an additional slot.
The idea that the court is, or ever was, apolitical, is … pure malarkey. And Biden should not have it.
Biden says he’s not a fan of adding more seats to the court, but he should admit that it could be the only possible solution to a court that has been manipulated by Republicans over decades to make it hugely unrepresentative of either the nation, or of legal scholarship. He might also mention that with Trump and McConnell colluding to pack other federal courts with hundreds of unqualified appointees, having a fair and unskewed court is a necessary buffer against genuinely horrible legal rulings.
Biden might also mention other options, such as limiting the term of justices, or even having justices selected form a rotating pool of justices at the circuit court level. But above all he should make it clear that he’s not “breaking” some sacred trust concerning the court. That trust has never existed, and the efforts of Republicans over the past half century have made the Supreme Court even less representative than the lopsided Senate and Electoral College.
Let the pearl clutchers clutch. This needs to be fixed.