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Photo by Chip Somodevilla/Getty Images
Since the end of the primary, Democratic nominee Joe Biden has mostly been able to avoid controversy. This has kept the focus on Trump — his disastrous response to the pandemic, his successful efforts to avoid paying taxes, and his repeated refusal to condemn white supremacists.
But there is a tradition in the media to "balance" the coverage between competing candidates. And, in recent days, journalists — with help from Republican operatives — have manufactured a controversy involving Biden. On the trail, Biden is repeatedly asked if he supports expanding the number of justices on the Supreme Court, a policy sometimes referred to as "court packing."
In recent days, Biden has declined to explicitly state whether he would support expanding the court, saying he would "stay focused" on Republican efforts to install Amy Coney Barrett to replace the late Justice Ruth Bader Ginsburg after early voting has already begun.
The media has largely accepted the Trump campaign's argument that Biden's refusal to definitely answer this question is a scandal.
Fox News captured the dynamic in the media:
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The article cites journalists from CNN, The Washington Post, ABC, Axios, and others blasting Biden's refusal to take a clear stand. The journalists say Biden's answer "makes no sense," is "a cop out," and "truly insulting."
What is never explained is why Biden's ambiguity on court packing is more significant than Trump's ambiguity on nearly every important issue.
Trump and Pence both claim the administration has a "plan" to protect coverage for people with pre-existing conditions if they are successful in their lawsuit to strike down Obamacare. But neither has said anything about what they plan to do.
Trump is also promising a new tax cut, but has released no plans or proposals:
Most dramatically, neither Trump nor Pence will say whether they support a peaceful transfer of power following the November election.
In contrast, Biden's campaign website contains detailed policy plans on taxes, economic recovery, racial equality, caregiving, infrastructure, veterans, small businesses, bankruptcy reform, and dozens of other topics. Donald Trump's campaign website does not have a policy section at all. Republicans also did not produce a party platform.
We are told, however, that court packing is a radical idea because it would break the "norm" of nine members of the Supreme Court. Biden must answer this particular question because this norm is of special importance.
This manufactured controversy is an illustration of how the concept of norms operates in American politics. Republicans, with the assistance of the media, conjure norms when they are useful to protect the powerful. Right now, Republicans are invoking the norm of a nine-member Supreme Court to protect a potential 6-3 conservative majority that will erode voting rights, support big business, and undermine women's reproductive freedom. But, just four years ago — when a nine-member Supreme Court seemed to run counter to Republican's interest — that norm did not exist.
Republicans advocated shrinking the Supreme Court in 2016
In 2016, Republicans were anticipating a victory by Hillary Clinton. To prevent Clinton from filling the vacancy created by the death of Anthony Kennedy — or any other vacancies during her term — by shrinking the court.
Among those who were open to shrinking the court was Senator Ted Cruz (R-TX). Here's how his remarks were covered in The Washington Post on October 26, 2016:
Speaking to reporters after a campaign rally for a Republican U.S. Senate candidate here, Sen. Ted Cruz (R-Tex.) said that there was “precedent” for a Supreme Court with fewer than nine justices — appearing to suggest that the blockade on nominee Merrick Garland could last past the election.
“You know, I think there will be plenty of time for debate on that issue,” said Cruz, when he was asked whether a Republican-controlled Senate should hold votes on a President Hillary Clinton’s nominees. “There is certainly long historical precedent for a Supreme Court with fewer justices."
Speaking this weekend on Fox News, Cruz said that changing the number of justices on the Supreme Court would "politicize it" and "destroy its independence."
In 2016, Senator Richard Burr (R-NC) said it was his intention to keep the Supreme Court at eight justices for four years. "[I]f Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court," Burr said.
Even the late-Senator John McCain (R-AZ), who was venerated by the media as a moderate and an institutionalist, said he supported keeping the Supreme Court at eight justices during a potential Clinton presidency.
At a debate on October 10th, Senator John McCain, of Arizona, said flatly, “I would much rather have eight Supreme Court Justices than a [ninth] Justice who is liberal.” A week later, in a radio interview, he made that a “promise,” telling listeners that “we will be united against any Supreme Court nominee that Hillary Clinton, if she were President, would put up.”
This position was also advocated by the Heritage Foundation, one of the most influential think tanks on the right.
Dan Holler, Heritage Action’s vice president of communications and government relations, signaled that this year’s Republican blockade of President Obama’s nominee, Merrick Garland, is just the beginning of a fight that could last the entire first term of a Clinton presidency.
“You’ve seen John McCain and others talk about the need to not confirm any liberal nominated to the Supreme Court,” Holler said. “That’s exactly the right position to have.”
Today, the Heritage Foundation says changing the number of justices on the Supreme Court would be "devastating to our Republic."
What this illustrates is that a nine-member Supreme Court is not a norm cherished by Republicans. It is a concept that is invoked or disregarded by Republicans as necessary to seize power.
Power versus principle
Republicans have shown a willingness to embrace or eliminate norms to shape the federal judiciary in other ways. For example, for many years, the Senate had a tradition called the "blue slip." The tradition stated that a judicial nomination would not proceed unless both of the nominee's home state Senators supported it. During the Obama administration, Republicans used blue slips to obstruct judicial nominees even when the Senate was controlled by Democrats:
The reason there are currently 11 judicial vacancies in Texas is because Republican Senators Cruz and Cornyn refused to sign off on any Obama nominee. The White House eventually gave up even offering names to fill them. In Pennsylvania, a vacancy has been open on the Third Circuit since July 2015 after the White House could not reach agreement with Republican Senator Pat Toomey on an acceptable candidate.
But despite the abuse of blue slips by Republicans, Democrats clung to the tradition. It was revered by Judiciary Committee Chairman Pat Leahy (D-VT). What happened when Trump took power and Republicans controlled the Senate? The tradition of blue slips was quickly scrapped. But Senator Diane Feinstein (D-CA), who would chair the Judiciary Committee if the Democrats retake the Senate, may reinstate blue slips.
What would Joe Biden do?
Setting aside the merits of court packing, Biden seems unlikely to expand the Supreme Court. During the campaign, Biden has twice said that he opposed the idea. "I’m not prepared to go on and try to pack the court, because we’ll live to rue that day," Biden said in July 2019. He gave a lengthier explanation of his position during a primary debate in October 2019:
I would not get into court packing. We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.
Those statements were made prior to the Senate Republicans deciding to push Barrett to replace Justice Ginsburg. So it's possible that decision changed his mind.
But it seems more likely that Biden's strategic ambiguity is an effort not to alienate Democrats that support court expansion, rather than an effort to conceal his secret plans to pack the court.
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