Biden Should Stay Quiet About Court Packing

Asked yesterday about his position on court packing, former Vice President Joe Biden provided a telling non-answer.

Will Democrats try to pack the courts? The question has persisted since Ruth Bader Ginsburg’s death and Amy Coney Barrett’s infectious Supreme Court nomination. Donald Trump asked Biden directly during the first debate, and Vice President Mike Pence played copycat, challenging Kamala Harris to answer earlier this week. Neither took the bait, and now we have our answer.

For now, it’s a good one.

Court packing isn’t a small issue. It’s an immense political move that could have generational impact—a bit like obtaining a supermajority on the highest court in the land by setting bullshit precedents and despite winning fewer votes. Packing the Supreme Court is the most obvious way for Democrats to counter Republicans’ ill-gotten majority.

By not giving an answer, Biden’s tacitly implying he’d use executive (and potentially legislative) powers to thwart Republicans’ court domination. He’s playing actual politics here, the kind you usually see big bad Republicans do on the TV. He’s not explaining his position because he doesn’t have to. At the very least he’s being coy and waiting to see where the chips fall with Amy Coney Barrett’s confirmation; at the very most he’s using it as a threat against Senate Republicans trying to bulldoze their way to a Supreme Court supermajority. He’s completely dropped the pretense that he owes voters anything, because he doesn’t—if he did, he might consider backing the Green New Deal or universal healthcare.

The media, understandably, isn’t used to seeing or hearing this kind of move from a Democratic politician. They’re accustomed to covering performative gestures that tangentially address a serious issue without containing any real bite. Biden’s court packing non-position could wind up being exactly that when things are said and done, but for now it’s a savvy play. All the journalists clamoring that this is unconscionable and that Biden owes the American people an answer are the same ones who have let Trump skate by for a full term. They’re almost clamoring to turn this into a both sides issue, ready to equate Biden’s dishonesty with Trump’s and morph his court packing play into the Clinton email scandal from 2016. Biden understands that answering the question would give journalists plenty of fodder to blow this whole thing out.

Biden isn’t working without historical precedent, either—FDR threatened to pack to the Supreme Court, which led to justices suddenly becoming more amenable to parts of the New Deal. There are plenty of other examples of court packing throughout American history, including recently in Arizona. Regardless, Biden will be villainized for this, and maybe rightly so. Maybe he could’ve used slightly better language or say he’d wait to see how Barrett’s confirmation goes—but we know that answer would be treated the same as his current one. For once it’s nice to see the Democratic candidate hold fast on an issue he doesn’t have to commit to right away. He’s put the ball in the GOP’s court and all they can do is cry foul.