Courting Disaster

What Joe Biden gets wrong about SCOTUS expansion

The Supreme Court closed its 2023 session last week with a climactic fury of conservative rulings. In Biden v. Nebraska, the Court struck down the Biden administration’s long-promised plan to cancel (some) higher-education student debt. 303 Creative LLC v. Elenis enshrined the right for businesses to discriminate against LGBTQ+ folks despite their being a protected class. Students for Fair Admissions v. President and Fellows of Harvard College held that affirmative-action policies in college admissions were unconstitutional. These decisions come on the heels of SCOTUS undermining the Clean Water Act in Sackett v. Environmental Protection Agency, absolving the federal government of its obligations to the Native American tribes within its borders in Arizona v. Navajo Nation, and of course overturning Roe v. Wade and ending federal protections for abortion rights in last year’s earth-shattering Dobbs v. Jackson Women's Health Organization.

Ever the institutionalist, Joe Biden’s faith in the American justice system remains unbroken. After initially calling the current SCOTUS “not a normal court,” he once again threw cold water on the idea of appointing additional justices to counteract the judiciary’s partisan imbalance. Packing the Court, he argued in an interview with Nicole Wallace, was “a mistake” and “doesn’t make sense.” He went on:

“I think if we start the process of trying to expand the Court, we’re going to politicize it maybe forever in a way that is not healthy, that you can’t get back. I think, look, maybe it’s just the optimist in me, I think that some on the Court are beginning to realize their legitimacy is being questioned in ways that hadn’t been questioned in the past. And I think there’s a concern on some of them, maybe even the Chief Justice, that maybe, maybe we’d better…that’s what I’m hoping.”

Biden’s disinterest in pushing the political envelope is unsurprising, even as his passiveness inhibits his own agenda. His administration has been characterized by negotiating for the sake of negotiating, by dismissing reasonable policy ideas as naïve idealism, and by deflecting responsibility to the voters instead of keeping his campaign promises. Yet the reasoning Biden offered here goes beyond his garden-variety incrementalism — and not just because he acknowledged having made up his mind before the 2020 election, meaning the study group he convened to explore the possibility in his first year was mere window-dressing. So it’s worth examining the implications and inaccuracy of what he’s actually saying.

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Consider first Biden’s most-benign claim, that packing the Court will cost the judiciary its reputation as neutral actors who simply call balls and strikes. A reasonable followup question would have been: Who still thinks the Supreme Court isn’t already politicized? Public opinion of SCOTUS has been underwater for two years. If the reversal of Roe, the culmination of a decades-long project to turn the judicial branch into a wing of the conservative movement, didn’t break this kayfabe, surely this term’s spate of ideologically motivated rulings should have removed all doubt. That a Democrat could have lived through the last decade of GOP SCOTUS shenanigans — in which Republicans made up a precedent that Barack Obama could not appoint a Supreme Court Justice in an election year, then immediately broke that rule to push Amy Coney Barrett’s nomination through just weeks before the 2020 election — and see reciprocal countermeasures as antithetical to judicial balance instead of prerequisites is confounding.

The judiciary’s political nature is no Trump-era fad. The Supreme Court’s impartial and infallible wisdom is a convenient platitude, but it’s an ahistorical one. Dred Scott, Plessy, Korematsu: Does Biden believe packing the Court would be a bigger stain on the body’s reputation than these unconscionable rulings? My generation, whose formative experience with SCOTUS was as Presidential kingmakers in Bush v. Gore, has never seen the Court as above the fray. Biden himself should have intimate knowledge of how politicized the judiciary has been, given his key role in one of the most-contentious nomination fights in American history (defending Clarence Thomas from sexual-harassment allegations).

Just weeks after needlessly kneecapping his own position in the debt-ceiling negotiations, Biden’s remarks also reaffirm his misunderstanding of political leverage. He suggests that the Court may be starting to rule with an eye towards shoring up their legitimacy — an apparent endorsement of politically minded adjudication that contradicts his previous sentence — but neglects his own power to shape that public pressure. Wallace identifies Moore v. Harper, in which the Court somewhat surprisingly ruled against the (thankfully still-)fringe independent legislature theory, as the source of his optimism. This decision has been widely speculated to be a demonstration that there are limits to SCOTUS’ partisan bent and a preemptive olive branch before their remaining controversial rulings were released. History is said to rhyme. Surely someone in the Biden Administration has made the connection between the self-preservation instincts John Roberts, Brett Kavanaugh, and Barrett displayed in Moore and the SCOTUS dynamics of the New Deal era. In 1937, a fed-up Franklin Roosevelt tried to pack the bench with ideological allies who wouldn’t strike down his economic reforms. A bill to expand the Court was debated in Congress and he made his case directly to the American people in one of his famous fireside chats.

Obviously FDR’s plan never made it into law. But as you may remember from high school history class, it’s popularly understood that the mere threat of packing the Court nudged the judiciary away from its entrenched minoritarianism. Apparently Biden has no interest in learning from the past. In taking expansion off the table altogether instead of at least leaving it on the back-burner, he has neutered his ability to apply even the type of political pressure he believes is good for the Court.

Yet the biggest problem with Biden’s position is that he elides the consequences of maintaining the SCOTUS status quo. The question at hand is not whether expansion is desirable, as in his telling. It’s whether modifying the arbitrarily established bench size is more objectionable than not correcting the Court’s recent mistakes — and preventing the next waves of right-wing policymaking disguised with legal trappings that are sure to come.

Which scenario bothers Biden more: Altering the not-Constitutionally prescribed number of SCOTUS seats, or leaving student-loan debt intact? Showing a modicum of ideological leadership, or gutting the EPA’s regulatory authority? Setting aside his Norman Rockwell-esque view of how Washington is supposed to work, or enabling anti-LGBTQ+ discrimination? Which longstanding doctrine is more important, having nine Justices on the Supreme Court, or abortion being legal?

Biden has already answered these questions. He’s just hoping we won’t notice.

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There is a more-compelling argument against packing the Court that some on the left are too quick to dismiss: the dangerous precedent it would set. If the Democrats expand SCOTUS now, you can bet that a future President Trump or DeSantis or Catturd2 will reciprocate before they even get the White House Wi-Fi password. If the last decade of American politics has taught us anything, it’s that Republicans are much more effective (or at least shameless) in wielding the powers of their offices than Democrats, especially when it comes to the Supreme Court. It’s possible to reckon honestly with the consequences of the status quo and still believe the ripple effects of SCOTUS expansion would ultimately take us to an even worse place. On the other hand, there’s no guarantee that the GOP wouldn’t try to pack the Court regardless, and the Democrats’ current wait-them-out strategy for rebalancing the judiciary already essentially hinges on never losing a Presidential election again.

It’s also fair to note that a Court-packing plan would presumably be dead on arrival in Congress, even within the Democratic-controlled Senate. (A President could theoretically try to circumvent this by just recess-appointing new Justices without corresponding legislation, but the chances of Biden mounting such a Constitutional challenge are even slimmer than the odds of it working.) Yet that doesn’t absolve Biden of his responsibilities as a leader. A vision of politics focused solely on short-term practicality is an escalator to nowhere. In addition to ratcheting down the pressure on the Court to consider their own credibility with their decisions, Biden demurring on SCOTUS reform undermines his own rhetoric about the importance of the issues at stake and squanders a chance to shift the Overton window for a future administration. As I wrote after Dobbs, merely fighting the good fight would not be enough, but it would still be a big improvement.

At this point I’m not convinced by these counterarguments, but they are reasonable. As with Mike Trout’s status as the best player in baseball circa 2013, we can agree to disagree. Not so for narrow-minded institutionalism. Seeing adherence to outdated norms as a first principle regardless of the consequences is flatly incompatible with progressive values.

America deserves a Commander-in-Chief who understands the impact of inaction. Democratic voters deserve a choice in next year’s primaries who is willing to fight for the party’s agenda (and isn’t an anti-vaxxer). The scores, if not hundreds, of millions of people whose rights have been infringed upon by the Supreme Court deserve an advocate who cares more about their plights than an antiquated sense of tradition. Mr. President, the ball is in your court.