It is just under two weeks to Nov. 3, election day, and Presidential Candidate Joe Biden remains vague on his stance of packing the Supreme Court. The question has arisen as a direct result of Justice Ruth Bader Ginsburg’s passing on Sept. 18 which was followed by President Donald Trump’s subsequent nomination of Amy Coney Barrett. Biden has stated that he is “not a fan of court packing”. In actuality, former Vice-President Biden is not a fan of the position that Trump has put him in, but this does not alter the fact that the American people deserve an answer.

“Never before, when an election has already begun and millions of votes are already cast has it ever been that a Supreme Court nominee was put forward,” Biden explained. Biden is certainly correct about that. Additionally, Biden is currently wedged between two very different groups: progressive Democrats in favor of court packing and moderate Americans who view it as a dangerous tactic. Both sides have valid arguments for their views. Progressive Democrats believe that Republicans have taken over the court and have utterly scourged the Court’s position of being “above politics.” Firstly, they view Trump’s nomination this close to election day as being unethical and contradictory. Progressives point the attention to Conservatives opinions on former President Barack Obama potentially appointing a Justice following the death of Justice Antonin Scalia. In 2016, Senate Majority Leader Mitch McConnel even tweeted “The American People should have a voice in the selection of their next Supreme Court Justice.” Furthermore, Progressives see a largely Conservative Court as a threat to their rights. Chiefly, they worry about how the court will rule on abortion and voting rights rulings.

Representative Alexandra Ocasio Cortez voiced her opinion as well. “We should leave all options on the table, including the number of justices that are on the Supreme Court,” she said. 

Moderate Americans who disagree with court-packing view it as a direct threat to the legitimacy of the courts. The Judicial system is unique in that it does not garner the power to enforce their rulings. Instead, the Courts largely rely on the support from the other branches and the weight that their word traditionally has held. Furthermore, they see court packing as opening a floodgate. If the Democrats pass a law stating that this practice is possible, Pandora’s box is opened and either side can utilize it. 

 Perhaps the ideal way for the Biden campaign team to hand the card they have been dealt is to inspect the history of court packing.”

Perhaps the ideal way for the Biden campaign team to hand the card they have been dealt is to inspect the history of court packing. In 1937, President Franklin D. Roosevelt announced his intention to increase the number of justices up to 15. His reasoning was that the court would become more efficient, but it was also a political maneuver to pass New Deal legislation. The court had previously struck down his attempts to relieve the Great Depression by ruling that the Federal government was overstepping the authority it was granted by the Constitution. Yet, President Roosevelt’s reforms intended to look at the larger picture, not just the events of the time period. FDR saw an issue with the retirement age of justices and the payment they would receive. He did in fact hope to make it more efficient by allowing more leeway for Justices to do their jobs up to the point their age allowed, but still maintain their livelihoods after the fact. The Founding Fathers originally outlined the Constitution in a way where Justices would be appointed for and presumably filling their spots, for life. Life expectancy has changed. Roosevelt hoped to aid this transition. This change did not end up going through and the reforms, due to the state of the economy at the time, passed regardless.

Now, what does this precedent mean for Biden and how he should mold his message? Many of the individuals who support court packing in this case do so because they view Trump and his cohort’s moves as detrimental to Democracy. Their ideologies do not necessarily align with Biden’s, but I believe that they will cast their votes for him anyways. Their ultimate fear is that Trump will be re-elected and they know what a failure to cast their ballots would look like. If Biden does not get behind court packing, that is not their end all be all. For the other side of the potential voter pool, who have less riding on this election, court packing remains a contentious topic. They view it as opening the door that either tool could utilize in the future. They do not like this precedent and they are more in between candidates than the other division. 

Thus, Biden should instead put out a strong message on court packing. One that mirrors the actual beliefs he voiced in the Democratic primary debates of last year. “I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all,” said Biden, during onse such debate. If he were to reform the court in other ways, with different intentions than simply turning the partisan ties, that would be a different story entirely. 

Now, he must instead appeal to the centrist voters that may win him this election. It is unfair to ask of the American people to wait to hear his opinion after their votes have been cast.