Joe Biden Once Said Packing the Supreme Court Was a Bonehead Idea—What Will he Say Tonight?

Democratic nominee Joe Biden said in 1983 that an attempt to pack the U.S. Supreme Court was a "bonehead idea." But as the November 3 election draws closer, Biden has been frustratingly tight-lipped on his stance about the contentious issue, leaving both Republicans and Democrats in the dark.

Biden's reluctance to comment on court packing could be because of its extreme unpopularity among a majority of voters, and the pressure from the progressive wing of his party to keep the option on the table. One way or another, Biden will face backlash for an explicit response on the matter, and the Democratic nominee will likely be asked about the issue during Thursday's town hall event.

The future of the Supreme Court has become a major focal point following the September 18 death of Justice Ruth Bader Ginsburg. In the days since, President Donald Trump and his Republican counterparts have been working to confirm Judge Amy Coney Barrett.

Barrett, whose hearings with the Senate Judiciary Committee are expected to end Thursday, is regarded as a textualist, with ideas and legal interpretations similar to those of the late Justice Antonin Scalia, whom Barrett regards as her mentor.

The stakes are impossibly high. If Barrett is confirmed, the court would have a 6-3 conservative majority—becoming more conservative than it has been since 1950, a Washington Post analysis found. Several key Democrats have encouraged Biden to pack the court if he is elected and his party gains control of Congress.

Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.

— Ed Markey (@EdMarkey) September 19, 2020

"No Supreme Court vacancies filled in an election year," Senator Ed Markey of Massachusetts tweeted after Ginsburg's death in September. "If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court."

But Biden, who once said he was staunchly opposed to the idea of court packing, has avoided giving a clear answer on what he'd do if elected president in less than three weeks. Instead, the candidate has used reporters' questions as a means to further criticize Trump and other Republicans' rush to confirm Barrett.

"You will know my opinion on court-packing when the election is over," Biden told reporters October 8. "The moment I answer that question, the headline in every one of your papers will be about that rather than focussing on what's happening now. This election has begun. There's never been a court appointment once the election has begun."

Biden's waffling appears at odds with his stance in 1983 on the issue. Then a senator from Delaware, Biden argued during a Senate Judiciary Committee hearing that President Ronald Reagan's attempt to replace three members of the U.S. Commission on Civil Rights was similar to President Franklin Roosevelt's unsuccessful attempt in 1937 to pack the Supreme Court with six additional justices.

Joe Biden Oct 13
Wearing a face mask to reduce the risk posed by the coronavirus, Democratic presidential nominee Joe Biden points to supporters during a drive-in voter mobilization event at Miramar Regional Park October 13, 2020 in Miramar, Florida. Biden once said in 1983 that an attempt to pack the U.S. Supreme Court was a “bonehead idea.” But as the November 3 election draws closer, Biden has been frustratingly tight-lipped on his stance today, leaving both Republicans and Democrats in the dark. Chip Somodevilla/Getty

"It was totally within [Roosevelt's] right to do that. He violated no law, he was legalistically absolutely correct, but it was a bonehead idea," Biden said at the time. "It was a terrible, terrible mistake to make, and it put in question for an entire decade the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America."

Biden criticized Roosevelt's attempt at court packing again in 2005, calling it a "power grab."

"[Roosevelt] had a Congress made up of solid New Dealers, but the nine old men of the court were thwarting his agenda. In this environment, Roosevelt..., corrupted by power in my view, unveiled his court packing plan," Biden said. "He wanted to increase the number of justices to 15, allowing himself to nominate those additional judges. It took an act of courage in the part of his own party institutionally to stand up against this power grab."

Biden will likely be asked again about the hot-button issue during Thursday's town hall event hosted by ABC. The Democratic candidate said on Monday that he was "not a fan of court packing," but Biden has ruffled feathers for his unwillingness to be clear about whether it would be a possible strategy if he's elected president.

Biden's reluctance is likely explained by his focus on securing the White House. To offer a clearer answer with less than three weeks until the November 3 election might alienate key voters on both sides of the aisle.

Biden has suggested as much in his recent responses, arguing that he doesn't want his answer to distract from bigger issues currently facing the nation.

"I'm not a fan of court packing, but I don't want to get off on that whole issue," Biden told WKRC-TV on Monday. "I want to keep focused. The president would love nothing better than to fight about whether or not I would, in fact, pack the court or not pack the court."

His unwillingness to comment explicitly could have much to do with the fact that Americans, by and large, are not a fan of the idea. Polls suggest that the majority of American voters do not support the idea of court packing. According to a Washington Post/ABC News survey conducted September 21 to 24, just 32 percent of adults said they agree with increasing the number of Supreme Court justices. This includes a large number of Democrats (45 percent) and 29 percent of independents, the poll found.

Biden is, however, under pressure from parts of his party on the issue. Progressives within the Democratic party have embraced court packing as a way to clip the wings of Republican appointed judges, and Amy Coney Barrett is all but confirmed to the Supreme Court. Senator Kamala Harris, in 2019, told the New York Times she was "absolutely open" to expanding the size of the court, while Chuck Schumer and Nancy Pelosi have also been clear about keeping the option on the table. To rule out court packing would trigger a backlash from his base.

"I have heard that there are some people on the Democratic side who would like to increase the number of judges," the late justice Ginsburg said in an interview with NPR last year. "I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court."

With most recent presidential opinion polls placing Biden ahead of Trump by single digits, the Democratic candidate cannot afford to lose any supporters in his campaign's final stretch.