Kudos to Joe Biden for saying that he’s open to the idea of reforming the Supreme Court, including the possibility of adding more seats.
It is very important that Democrats frame the issue as reform, not “packing.” We need to fix a court system that, in Biden’s words, is “out of whack.” The current system is too vulnerable to becoming unfairly skewed towards one political side or another, as has already occurred, based on which party happens to control the Presidency and the Senate when SCOTUS members die in office.
I think we need a proposal that will simultaneously accomplish two goals:
- Compensate for the refusal of the Senate to vote on Merrick Garland and the ramming through of Amy Coney Barrett while an election is occurring, both of which, although technically legal, violate the spirit of the Constitution.
- Not look like partisan vengeance for the said abuses of power by Republicans, by establishing a new system that will be consistent and non-random going forward, but which happens to begin with Biden’s term in office.
To do this, we could establish, by law, that each president will have the opportunity to appoint two new members to the Supreme Court during each presidential term, and that the Senate will be required to vote on all nominees.
The result is that the number of members of the Supreme Court would fluctuate — for example it would increase to 11 if none of the current justices (plus Barrett) die or retire during President Biden’s term. It would then increase to 13 if there are no deaths or retirements during, let’s say, a hypothetical term of President Harris beginning in 2024. However, if three justices die or retire during a president’s term, then SCOTUS membership would decrease by one seat.
The advantage of such a system is that it would accomplish the goal of adding more seats to the court under President Biden, but not in a way that could be easily be portrayed as partisan retribution. Biden would just happen to be the first president who gets to appoint justices under the new system. If a Republican wins in 2024, then they would get to appoint the next two justices, and so on. The system would therefore be more democratic, with less deviance between the political views of the court and our elected officials.
I think such a plan for Supreme Court reform could be sold to the American people as a non-partisan improvement to the current system. It would also likely enable President Biden to shift the political balance of the court in a more progressive direction.
