The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Joe Biden's gyrations on the issue of court-packing have been the focus of much attention in recent weeks. And for good reason: packing the Court would be a terrible idea likely to seriously damage the valuable institution of judicial review.
In a recent CBS 60 Minutes interview, Biden proposed setting up a bipartisan commission on reforming federal courts:
"If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform thebecause it's getting out of whack — 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."
Biden continued: "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."
The implications of this statement for court-packing are not immediately clear. But if Biden (assuming he wins the election) does go ahead with the the commission plan, on balance it would be a helpful development from the standpoint of those of us who oppose court-packing.
Establishing a commission is the kind of thing presidents tend to do when they do not want to prioritize a given issue. History shows that a new president's best window of opportunity for dramatic new policies often comes within the first hundred days or so of a new administration. If Biden doesn't proceed with court-packing until the commission is appointed and completes its deliberations (which he says it would have 180 days to do), that would take us well past the initial honeymoon period when a new president's influence is at its height.
Moreover, if Biden is serious about making the commission "bipartisan" and including both liberal and conservative legal scholars, then it is unlikely the commission would recommend any form of court-packing. With the exception of Charles Fried, I cannot think of any even remotely prominent conservative (or libertarian) legal scholars who supports court-packing. The issue is one that unites the legal right, but divides the left (where there are still a good many court-packing skeptics). Thus, any balanced commission would either reject court-packing or at least divide along ideological lines on the subject.
If I'm right about the timing and composition of the commission, then Biden may be using the idea to sideline court packing and instead pursue reforms that have broader support, such as a constitutional amendment imposing term limits on Supreme Court justices which has widespread cross-ideological support among experts. That would be consistent with his own longstanding distaste for court-packing and with his statements in the 60 Minutes interview saying he wants the commission to make recommendations that are "not about court packing" and that he wants to avoid making the Court a "political football." Biden undoubtedly realizes court-packing would have exactly that effect (he has said as much in the past).
He may also want to avoid court-packing because it is highly unpopular, and making it a major initiative of his administration would be a political risk. Biden may well prefer to spend his political capital on other objectives, that are more likely to be political winners.
For all these reasons, unlike Josh Blackman, I am skeptical of claims that Biden wants to establish a commission so that it will recommend court-packing, and thereby somehow legitimize the idea. If he wanted to make a push for court-packing, the most effective way would be to just do it right out of the gate, while Democratic anger at Republican appointment shenanigans is still white-hot, and Biden's own influence is at its height.
Of course Biden could try to pack the supposedly bipartisan commission with members known to support court-packing; it would then be "packed with packers"! If he looks hard enough, he could find some people somewhere who support court-packing, but still claim to be Republicans or conservatives. But in that event, there would be little political benefit to having the commission at all, since its recommendations are unlikely to have any sway with anyone who doesn't already support court-packing. The supposedly right-of-center members (with the possible exception of Fried) would be relative nonentities with little credibility.
Alternatively, Biden could try to engineer a commission that would recommend one of several proposals out there, that are functionally equivalent to court-packing, but have slightly different structures and labels, such as "rotation" and "court balancing." But, once again, none of these are likely to be endorsed by credible conservative or libertarian experts (Fried, again, perhaps excepted). And, as with traditional court-packing, if Biden really wants to pursue them, his best shot would be to just dispense with any commission and make a push right out of the gate.
In sum, if Biden does choose to proceed with the commission idea, that might well be an indication that he wants to avoid court-packing.
Even if Biden initially avoids packing, that doesn't mean the idea will be dead forever. Unfortunately, over the last two years, it has become a part of mainstream political discourse within the Democratic Party. Thus, even if Democrats do not pursue it 2021, it could be revived later. But the more time passes without a serious court-packing effort, the more the political norm against it might be rebuilt. In the long run, hopefully, we might even preclude it by constitutional amendment, though I'm not optimistic that can happen anytime soon.
Obviously, the fate of court-packing doesn't depend on Biden alone, though—if he wins the election—he will be the single most significant player. It also depends on the size of any Democratic Senate majority. If, as is likely, that majority is relatively small, court-packing could only pass with the support of moderate swing-voters who may be unlikely to warm to the idea, even if Biden backs it.
It would be a mistake to conclude from all this that we are out of the woods on court-packing. If Biden wins, he could still decide to do it, and there are obviously a good many people in his party that would like to see it happen. If I didn't think there was any real chance of court-packing in the event of a Biden victory, I would not have proposed various deals to try to head it off. At the moment, however, Biden seems more like a man who is trying to find a way to avoid it, than one maneuvering to make it happen.
UPDATE: I wrote this post before I saw Eric Boehm's very similar take on the commission proposal:
[T]his new promise to create a "national commission" seems mostly like a way to make the question go away. It's a tried and true political strategy: punt a controversial issue to a panel of supposed experts to make it look like you're doing something. As a longtime creature of the U.S. Senate—which isn't called the "world's most deliberative body" for nothing—Biden understands the value of doing nothing while looking like you might do something someday.
Still, there are two things we can definitively say about Biden's newest take on court-packing. He has objectively backed away from his former position of opposing the idea, even if he's opening the door only a crack. And he's committed to waiting at least six months into his potential first term before doing it—in other words, it's not important enough to rise to the very top of a Biden administration's agenda. That's good.