US election: what is Supreme Court packing - and will Joe Biden do it?

Democratic candidate walks tightrope on expanding America’s highest court

US Supreme Court
The current Supreme Court justices with the late Ruth Bader Ginsburg (seated second from R)
(Image credit: Chip Somodevilla/Getty Images)

Having dodged the issue for several weeks, Democratic presidential nominee Joe Biden has promised to give a clear position on “Supreme Court packing” before election day.

During a televised town hall event last Thursday, Donald Trump’s challenger said he would base his policy on how the Rupublicans handle the confirmation process for Judge Amy Coney Barrett to fill the seat left open by the death of Justice Ruth Bader Ginsburg.

Biden told the audience at the meeting in Philadelphia that he is “not a fan” of court packing. But when pressed by moderator George Stephanopoulos about whether he would consider increasing the number of Supreme Court justices, the would-be president replied: “I’m open to considering what happens from that point on.”

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What is court packing?

Court packing involves expanding the Supreme Court beyond its current count of nine justices. Some US progressives have floated it as a future policy to balance the court’s ideological make-up if, as expected, Barrett’s nomination is confirmed in a vote by the US Senate Judiciary Committee on 22 October.

If Barrett takes up the seat, it will “solidify a 6-3 conservative majority on the court”, says CBS News. Democrats have tried to delay the process, insisting that the seat should be held open until after the election, as was the case when conservative judge Antonin Scalia died just before the end of Barack Obama’s presidency.

But with the Republicans steaming ahead with their plans, the once “fringe idea” of court packing has “suddenly come into the mainstream”, says the Financial Times.

Will Biden do it?

Biden insisted in July last year that he was opposed to court packing, and warned that the Democrats would “live to rue” any such move.

But his current evasiveness on the matter shows the “the tightrope he is walking on” as the clock ticks down until voters go to the polls on 3 November, says the FT.

“The bottom line is that [Biden] feels he’s in a really good position right now and he really doesn’t want to do anything to rock the boat,” said US political strategist Jim Manley.

“If he says he’s for court packing, that gives the Republicans just another target to go after him, and if he opposes it, the left is going to be unhappy.”

The issue is “tricky politics” for the Biden campaign, agrees The Washington Post.

On the one hand, adding a left-leaning justice would allow a Biden-led administration to “push back against potential legal challenges to abortion, LGBT rights, voting rights, climate change regulations - nearly everything they hold dear”, but on the other, “it could play into Republican attacks that the Democratic Party is extreme”.

The paper predicts that ultimately, the Democrats may opt to “split the difference”, by coming out against court packing, but in favour of other Supreme Court reforms such as term limits for justices.

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