Biden Punts on Expanding the Supreme Court, Calling for Bipartisan Review

For many years, the Supreme Court has been in a state of relative balance between generally predictable voting blocs of liberals and conservatives, with a “swing” justice in the center deciding which faction to make into a majority on hot-button cases — such as striking down the Affordable Care Act or declaring that the Constitution creates a right to same-sex marriage.

That center vote, however, has grown steadily more conservative. It has moved from Justice Sandra Day O’Connor to Justice Anthony M. Kennedy, and then most recently to Chief Justice John G. Roberts Jr. With the likely confirmation of Judge Barrett, six of the nine justices would be Republican-appointed conservatives, a bloc positioned to control outcomes even if one of their number splits away to side with the dwindling liberal group.

In his remarks to CBS, Mr. Biden sought to downplay ideology, making a point to refer to “conservative constitutional scholars” as well as liberal ones. (On Monday, a prominent conservative legal scholar, Charles Fried, who served as solicitor general in the Reagan administration, argued in an opinion column that Mr. Biden should be open to expanding the judiciary if necessary, but should first wait to see whether the new majority “overplays its hand.”)

Congress clearly has the constitutional power to establish the number of seats on the Supreme Court, although it has left that number at nine since 1869. Some liberals want Congress to expand it by two to four seats, arguing that Mr. Trump and Republicans have “stolen” a 6-to-3 majority bloc that will be empowered to roll back liberal gains on matters like abortion rights and strike down any coming Democratic laws and regulations on issues like health care and climate change.

Tit-for-tat partisan warfare over judicial appointments has escalated since the 1980s, and critics of court expansion argue that it would be a new violation of norms and would set the stage for Republicans to retaliate by adding more justices the next time they returned to power, leading to an ever-expanding court.

Other ideas have also been proposed by various scholars and activists who think that the judiciary has become unbalanced or that the partisan tug-of-war over it has gotten out of control, but who do not think simply expanding the court for ideological purposes is the right answer.

One idea is to impose staggered, 18-year terms on the nine justices’ seats, meaning that a seat would open up in the first and third year of each presidential term, ensuring measured and predictable turnover. Others include having a bipartisan commission of legal experts select judicial nominees, or having each party appoint a third of the justices with the final third a rotating cast of justices chosen by the politically selected justices.