Former Vice President Joe Biden had a pretty good answer for 60 Minutes on the Supreme Court and how he would respond to the Republicans packing it with extreme ideologies (my terminology, not theirs): a commission. Yes, blue ribbon commissions are at this point kind of a laughable construction, but it's a fairly canny solution for Biden less than two weeks from an election in which everyone is clamoring for him to say he'll "pack" the 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," he told Norah O'Donnell. "And 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—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." That's a smart answer, provided it's buying him some time, but in the event that he puts it in practice, there are some key considerations here. That timeline is too long; he needs to reject "packing" and talk about it in terms of expansion; and careful thought has to go into who the "conservative" side of his panel is.
Step 1 is getting the White House and Senate in this final two weeks. Sign up with 2020 Victory to make phone calls to battleground state voters for Joe Biden, Kamala Harris, and a Democratic Senate. Phone call times are flexible, and you can also sign up for a training session if you are new to doing it.
In the interview, Biden said: "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." So on the "packing" thing, he needs to do some work. Talking about it as "balancing," if not "expansion," is a better way to address it. But it doesn't hurt to get people used to hearing "expansion" and internalizing it—then it won't seem like a radical thing when it happens.
But six months, 180 days, is far too long for Biden and a likely Democratic Senate to wait to act. There are going to be massive actions that have to be taken in the first month of Biden's term to start fixing what Trump has wrecked, and there's going to be absolutely vicious opposition to it in the Republican states. The first place they'll go is the Republican-friendly courts, and they'll act swiftly and not on merit. If Republican courts gave a damn about the merits of any political case, the challenge to the Affordable Care Act wouldn't be in front of the Supreme Court right now.
The Supreme Court is also getting into the habit of acting quickly and dangerously right now. They've made it clear that voting rights are going to be history in a 6-3 Roberts court. The Alabama voting rights case, which was simply about voters being able to hand off their ballots curbside during this pandemic, proves it. As David Nir wrote, it's "truly heartbreaking." The lower court heard from Harold Porter, a Black man in his 70s who suffers from asthma and Parkinson’s Disease. "[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we're past that—we're past that time," he told the court, and it agreed with him. The Supreme Court's five conservatives didn't.
That happened within about a month's time. More than six months is far too long a period to give the Federal Society and the courts it has commandeered, including the SCOTUS, for their anti-democratic, minoritarian rule mischief. Hell, look at how fast they moved on Amy Coney Barrett—Ruth Bader Ginsburg had not even been buried yet when Trump was having the Barrett superspreader event at the White House. There was extremely scant outcry against that atrocity from conservative court-watchers, and there sure as hell was no one there to say "slow down."
Speaking of conservative court watchers, that's the other part of Biden's commission to be watchful of. Putting a Federalist Society type on the commission for the purposes of "balance" would be disaster. Listen to scholars like Lawfare's Quinta Jurecic and Susan Hennessey, who write that "if Barrett is confirmed and Trump loses the election, adhering to norms and accepting the status quo on January 20 poses a greater harm than expanding the Court would. We have now come to believe, more in sorrow than in anger, that adding justices may be the only way to restore the institutional legitimacy of the Court."
If the commission is just Biden's way to get there and to show that he's taking a thoughtful approach to the issue ahead of this election, great. It's a smart approach—it’s just one he shouldn't feel absolutely wedded to when reality hits on Jan. 20.