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Biden Punts on Expanding the Supreme Court, Calling for Bipartisan Review

Joseph R. Biden Jr., who for weeks has declined to clarify his position on progressive activists’ calls to expand the Supreme Court to add liberal justices, said in a new interview 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,” Mr. Biden, the Democratic presidential nominee, told CBS News’s Norah O’Donnell, according to an interview excerpt made public on Thursday and expected to be broadcast in full on Sunday on “60 Minutes.”

While Mr. 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 — an approach that has allowed the issue to fester and created fodder for a new and sustained line of attack from the right.

Under such pressure, Mr. 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 Trump and Senate Republicans are creating. And in the brief clip released by CBS, Mr. 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.

His team, however, offered few specifics about who would serve on the panel or how the campaign had settled on the idea, when asked for details at a news briefing on Thursday.

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“Vice President Biden has said again and again that, you know, he’s not a fan of expanding the size of the court,” said Symone Sanders, a senior adviser to Mr. Biden’s campaign. “But the commission will assess all the options and make a recommendation to him.”

Such proposals might go beyond the Supreme Court, she suggested, saying that the commission would “recommend ways to restore balance to the Supreme Court specifically” but would also focus on the federal judiciary.

Asked what kind of “balance” she was referring to, Ms. Sanders later said that “this is about restoring the legitimacy of the process.” On the call, she also said that “we cannot turn the Supreme Court into a political football.”

Remaining ambiguous could have strategic advantages for Mr. 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.

Aaron Belkin, whose group, Take Back the Courts, supports court expansion, warned in a tweet on Thursday that Mr. Biden’s idea of a 180-day commission might just waste time.

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Credit...Pete Marovich for The New York Times

“It’s key that need for reform is understood, but we don’t need 6 mo. of study,” he wrote. “We just need to take Court back.”

Mr. Belkin’s group recently released a study that found that Republican-appointed judges routinely interpret the law in ways that make it harder to vote, which it portrayed as meaning that they are anti-democracy.

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 B. Garland after the February 2016 death of Justice Antonin Scalia, keeping the seat open for Mr. Trump to fill with Justice Neil M. Gorsuch instead. The calls have reached a new pitch with the breakneck confirmation process for Judge Amy Coney Barrett after the death of Justice 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 M. Kennedy, and then most recently to Chief Justice John G. Roberts Jr. With the likely confirmation of Judge 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, Mr. 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 Mr. 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 Mr. Trump and Republicans have “stolen” a 6-to-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 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, Ms. Litman said.

An Oct. 15-18 New York Times/Siena College poll of likely voters found that court expansion was unpopular over all, with 31 percent for it and 58 percent against it. A majority of Democrats supported the idea — 57 percent to 28 percent — but that is far short of the backing such legislation would need to pass. (It would also most likely require that Democrats first abolish the Senate filibuster.)

Proponents of the idea have argued, however, that expansion would gain more popularity within the Democratic Party if its leaders vocally supported it. And they have raised the point that Republicans have entrenched minority rule of the country in part by managing to put a strongly conservative tilt on the judiciary, despite the fact that the G.O.P. has lost the popular vote in six of the last seven presidential elections and appears very likely to lose it again next month.

Brian Fallon, the 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,” Mr. Fallon said. “A commission that would allow opponents of structural reform to run out the clock is not a solution; it’s a punt.”

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