Joe Biden said Thursday he would name a bipartisan commission to propose an overhaul of the Supreme Court and federal judiciary because the current system is “getting out of whack,” following weeks of pressure to endorse or reject a push by liberals to expand the court.
Biden has repeatedly avoided saying directly whether he would accept a court expansion plan promoted by Democrats angry at Republicans’ speedy confirmation process for Amy Coney Barrett, who is expected to be approved by the full Senate within days. Thursday’s comments to CBS’s “60 Minutes” were Biden’s fullest response on the subject.
He reiterated that he does not love the idea of simply adding justices, should he be elected and Democrats retake the Senate, and filling those slots with liberals.
“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,” Biden said in excerpts of the “60 Minutes” interview, set to be broadcast in full on Sunday. “Presidents come and go. Supreme Court justices stay for generations.”
Rather, he suggested, he wants broader changes that would incorporate the views of conservative political leaders and legal scholars. Such experts have proposed everything from term limits for justices to rotating them on and off the court to imposing a rough ideological balance to guaranteeing each president at least two nominations.
“It’s not about court-packing,” Biden said. “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.”
Biden’s comments, and the political pressures that prompted them, reflect how the death of liberal icon Justice Ruth Bader Ginsburg, and the GOP response to it, has thrust a largely academic debate into the forefront of the presidential campaign, potentially setting up a major issue for the first months of a prospective Biden presidency.
Democrats are angry that Republicans are pushing through Barrett’s confirmation while voting is already underway in the presidential race, with a final Senate vote expected roughly a week before Election Day. That comes after Senate Majority Leader Mitch McConnell (R-Ky.) blocked former president Barack Obama’s last Supreme Court appointment — nine months before the 2016 election — on the grounds that it was too close to Election Day.
The commission proposal is also a fresh example of Biden’s political style, particularly his tendency to respond to pressure from the activist left without going as far as it wants. Some liberal groups want a Democratic Congress to add as many as four seats to the court and have Biden fill them all, creating an instant liberal majority.
Instead, Biden said the commission would have 180 days to come up with proposals, potentially giving his administration a window to determine whether a new era of bipartisanship is possible.
The liberal group Demand Justice called his proposal a “punt.”
“We certainly do not need a commission to tell us that Republicans are on the verge of stealing their second Supreme Court seat in four years and that the [Chief Justice John] Roberts Court routinely sides with voter suppression schemes that advantage the Republican Party,” said Brian Fallon, the group’s executive director. “This proposed commission runs the risk of stalling momentum for serious reform.”
But there is no clear consensus among Democrats on changes to the high court, with some favoring term limits and others even proposing lottery-type systems to select justices from a larger pool of federally appointed judges.
What is clear is that liberals are focusing on the federal judiciary in a new way, following years in which the issue was more important to conservatives. That’s largely because President Trump, with help from McConnell, has installed numerous young, highly conservative judges, including two Supreme Court justices and potentially a third.
Now, Democrats fear they may capture the White House and both chambers of Congress, only to see the courts throw out or restrict any liberal legislation and impose limits on voting that will help Republicans.
“We went for a long time without even noticing what was going on at the court,” said Sen. Sheldon Whitehouse (D-R.I.), a Senate Judiciary member. “We’re now, I think, at the noticing stage.” Whitehouse wants hearings on potential Supreme Court overhauls.
Adding justices — called “court-packing” by critics — is not particularly popular, surveys show, a fact that may be influencing Biden’s approach. More than half of Americans opposed increasing the number of justices to give the winner of the presidential election more influence, according to a late September Washington Post-ABC News poll. Roughly a third supported the idea, the poll showed.
A New York Times-Siena College poll released Oct. 20 asked specifically whether Democrats should increase the size of the court if Trump’s nominee is confirmed and Biden is elected president. That poll found nearly 60 percent did not support adding justices.
When Ginsburg died on Sept. 18, Biden’s top aides realized quickly that his position on court-packing would emerge as a question and huddled within hours of the news to determine how he would navigate it.
Biden for weeks stuck to the response they developed in that moment: remain cool to the specific proposal of adding justices, but leave open the possibility that he would accept some changes.
But as Senate Republicans pushed ahead with Barrett’s confirmation, a process unprecedented in recent history for its speed and proximity to the election, liberal groups began rallying around the concept of adding justices, and a growing number of Democratic officeholders said it should not be ruled out.
Sen. Christopher A. Coons (D-Del.), a Biden ally and a moderate, has become the latest to say he’s open to the concept of adding justices, and Charles Fried, who served as solicitor general under President Ronald Reagan, wrote this week that Biden should be “open” to changing the court.
The fast-evolving issue had left Biden struggling to come up with a way of talking about structural changes to a branch of government that much of the country knows little about.
During his ABC town hall earlier this month, Biden for the first time suggested he would be open to some form of term limits for the justices. The current lifetime tenure has elevated the stakes of each confirmation fight, making the battles increasingly bitter while presidents seek young, ideologically reliable nominees.
“There are at least four or five options that are available to determine whether or not you can change the way in which the court lifetime appointment takes place,” Biden said.
He also cited an idea from former South Bend, Ind., mayor Pete Buttigieg to expand the bench from nine justices to 15.
Buttigieg plucked his plan from the relative obscurity of the Yale Law Journal, where his former Harvard classmate Ganesh Sitaraman, now a professor at Vanderbelt University Law School, co-wrote an article outlining broad ways of overhauling the court.
The “Balanced Bench” plan would expand the court to 15 justices — five Democrats, five Republicans and five justices selected (either unanimously or via a supermajority) by the 10 partisans from the lower courts.
“I have a lot of interest in bipartisan structural reforms so that there’s not as much of an ideological death match every time there’s an opening in the court,” said Buttigeig in a recent interview with The Washington Post.
But it’s hardly the only plan under consideration. Shortly after Ginsburg’s death, Rep. Ro Khanna (D-Calif.) proposed establishing 18-year term limits for Supreme Court justices. After their time on the high court, they’d be sent back down to fill out their life appointments on a lower court.
Khanna’s plan also allows each president the authority to appoint two new justices to the high court during each term, as a way of removing serendipity from the appointments process. If three vacancies occur during a single term — as it has for Trump — one of them would remain open until the next president takes office.
Despite the political maneuvering, there is little evidence that voters are overly concerned with the structure of the Supreme Court.
During a Trump campaign call this month intended to drive a message that Biden is trying to pack the high court, the president’s surrogates had to explain what they meant before accusing Biden of doing it.
Democrats have sought to muddy the waters by accusing McConnell of “packing” the federal bench because of his aggressive push to fill vacancies with conservative justices.
But as McConnell has been filling these vacancies over the past four years, some Democrats and academics have sounded alarms about the federal bench, saying it increasingly has become a partisan body where justices largely reflect the views of the presidents who selected them rather than a higher institution that makes judgments outside of political whims.
One concern among liberals is that should Biden win, much of his agenda could go before a Supreme Court primed to knock it down. That realization has brought together Democratic activists focused on a variety of issues, who are seeing a Supreme Court overhaul as central to pushing their individual agendas.
“There is broad recognition that Democrats have very little choice but to expand the court,” said Shaunna Thomas, co-founder of Ultraviolet, a women’s rights organization who sees a conservative court as a barrier to liberal priorities. “I think people are very front-foot-forward on court-packing.”
But during the primary campaign, Biden was definitive in his rejection of those types of ideas. “I’m not prepared to go on and try to pack the court, because we’ll live to rue that day,” he told Iowa Starting Line in July 2019.
“I think it’s a bad idea,” he said in August 2019 during a trip to Iowa. “It will come back to bite us. It should not be a political football.”
But the day after Ginsburg’s death, Senate Minority Leader Charles E. Schumer (D-N.Y.) privately told Democratic senators that “everything is on the table” when it comes to changing the Supreme Court. The following Sunday, Schumer repeated that line as he stood with Rep. Alexandria Ocasio-Cortez (D-N.Y.) at a news conference in front of Ginsburg’s former Brooklyn high school.
Schumer hasn’t backed away from the idea. During a private call with members of the House Progressive Caucus at the end of September, he repeated his openness to changing the court, explaining that there were few “levers” available to Senate Democrats to stop the Barrett nomination, said Rep. Andy Levin (D-Mich.), who was on the call.
“I think you have to realize how violated we all feel,” Levin said. “I don’t think that really has to do with where you are on a political spectrum in the Democratic Party.”
He added: “We don’t feel like, ‘Oh, yeah, we would do just the same thing.’ ”
Fallon, with Demand Justice, expects more Democratic members of Congress to voice support for a court overhaul after Republicans vote to confirm Barrett, which is expected as soon as next week. And still more will offer various measures of support after the election, he said.
“This is now going to be a permanent part of the conversation, alongside other democracy fixes, like getting rid of the filibuster and adding D.C. as a state,” Fallon said. “This is now right alongside those proposals that have become consensus positions in the Democratic Party the last couple years.”
In the latest Washington Post-ABC News poll, Democratic nominee Joe Biden leads President Trump, with 54 percent of likely voters favoring him vs. 42 percent for Trump.
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