Joe Biden, who for weeks has declined to clarify his position on progressive activists' calls to expand the Supreme Court to add liberal justices, said recently that if elected, he would establish a bipartisan commission of scholars to study possible ways to overhaul the judicial branch.
"I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it's getting out of whack," Biden, the Democratic presidential nominee, told CBS News' Norah O'Donnell, according to an excerpt from a "60 Minutes" interview made public Thursday.
While Biden opposed court packing during the primaries, he has equivocated since the matter took on new urgency after Justice Ruth Bader Ginsburg died last month and Republicans rushed to fill her seat amid the election endgame. His equivocation has allowed the issue to fester and created fodder for a new line of attack from the right.
Under such pressure, Biden had said last week that voters "have a right to know where I stand" before they vote.
His proposal for a commission, however, continued to sidestep, for now, taking a yes-or-no position on diluting the power of the new conservative bloc that President Donald Trump and Senate Republicans are creating. And in the clip released by CBS, Biden emphasized that many other ideas were out there for overhauling the judiciary.
"The way in which it's being handled — and it's not about court packing — there's a number of other things that our constitutional scholars have debated, and I've looked to see what recommendations that commission might make," he said.
Remaining ambiguous could have strategic advantages for Biden — like avoiding clearly alienating either progressives or moderates and keeping the Supreme Court's conservative majority wary of overreach — but it could also leave him open to continued Republican attempts to stoke suspicions about his intentions, while irritating liberals who want a mandate to move decisively if Democrats take the White House and Congress next month.
Liberal calls to expand the number of Supreme Court seats began to swell when Senate Republicans would not permit a vote on President Barack Obama's nomination of Judge Merrick Garland after the February 2016 death of Justice Antonin Scalia, keeping the seat open for Trump to fill with Justice Neil Gorsuch instead. The calls have reached a new pitch with the breakneck confirmation process for Judge Amy Coney Barrett after the death of Ginsburg.
For many years, the Supreme Court has been in a state of relative balance between generally predictable voting blocs of liberals and conservatives, with a "swing" justice in the center deciding which faction to make into a majority on hot-button cases — such as striking down the Affordable Care Act or declaring that the Constitution creates a right to same-sex marriage.
That center vote, however, has grown steadily more conservative. It has moved from Justice Sandra Day O'Connor to Justice Anthony Kennedy, and then most recently to Chief Justice John Roberts. With the likely confirmation of Barrett, six of the nine justices would be Republican-appointed conservatives, a bloc positioned to control outcomes even if one of their number splits away to side with the dwindling liberal group.
In his remarks to CBS, Biden sought to downplay ideology, making a point to refer to "conservative constitutional scholars" as well as liberal ones. (On Monday, a prominent conservative legal scholar, Charles Fried, who served as solicitor general in the Reagan administration, argued in an opinion column that Biden should be open to expanding the judiciary if necessary but should first wait to see whether the new majority "overplays its hand.")
Congress clearly has the constitutional power to establish the number of seats on the Supreme Court, although it has left that number at nine since 1869. Some liberals want Congress to expand it by two to four seats, arguing that Trump and Republicans have "stolen" a 6-3 majority bloc that will be empowered to roll back liberal gains on matters like abortion rights and strike down any coming Democratic laws and regulations on issues like health care and climate change.
Tit-for-tat partisan warfare over judicial appointments has escalated since the 1980s, and critics of court expansion argue that it would be a new violation of norms and would set the stage for Republicans to retaliate by adding more justices the next time they returned to power, leading to an ever-expanding court.
Other ideas have also been proposed by various scholars and activists who think that the judiciary has become unbalanced or that the partisan tug-of-war over it has gotten out of control but who do not think simply expanding the court for ideological purposes is the right answer.
One idea is to impose staggered, 18-year terms on the nine justices' seats, meaning that a seat would open up in the first and third year of each presidential term, ensuring measured and predictable turnover. Others include having a bipartisan commission of legal experts select judicial nominees or having each party appoint a third of the justices, with the final third being a rotating cast of justices chosen by the politically selected justices.
Both liberals and conservatives over the years have also floated the idea of having Congress enact legislation stripping the federal judiciary of jurisdiction to hear certain types of politically charged cases, like constitutional challenges to particular laws.
Each of these ideas comes with potential drawbacks. Leah Litman, a University of Michigan law professor, said it was likely that several of these proposals could be achieved only through a constitutional amendment, which is difficult to enact. Stripping jurisdiction from the court, she said, might not always align with reformers' goals, because the Supreme Court majority, if determined to block Democratic-enacted policies, might find workarounds.
"The more concerned you are about this 6-3 court striking down Democratic legislation or these ideas, the more sympathetic you are to court expansion because that is the most obviously constitutional one — even though it creates this risk of possible retaliation" by Republicans when they next control both branches, Litman said.
Brian Fallon, executive director of Demand Justice, a group that pushes for a progressive judicial agenda, argued for addressing the issue with greater urgency.
"This proposed commission runs the risk of stalling momentum for serious reform," Fallon said. "A commission that would allow opponents of structural reform to run out the clock is not a solution; it's a punt."