Biden’s Thorny Options for Changing the Supreme Court

By overturning the abortion-rights decision Roe v. Wade, the Supreme Court’s conservative majority has added fuel to calls among some Democrats to change the court itself. Some want President Joe Biden to pursue the idea of expanding, or “packing,” the court beyond its current nine seats. Others would replace the life tenure of Supreme Court justices with fixed terms to guarantee each president has equal opportunity to shape its makeup. In December, a commission appointed by Biden reported back on these ideas, among others. By all indications, Biden seems unenthusiastic about pursuing such radical steps.

Frustration among Democrats has risen since 2016, when the death of Justice Antonin Scalia, a conservative, gave Democratic President Barack Obama the opportunity to move the court to the left. But Senate Majority Leader Mitch McConnell, a Republican, refused to consider Obama’s nomination of Merrick Garland, on the grounds that a vacancy shouldn’t be filled during a presidential election year. So it was Republican Donald Trump, rather than Obama, who wound up filling the vacancy, with Neil Gorsuch. Fast forward to 2020. A seat opened up just six weeks before Election Day with the death of Ruth Bader Ginsburg, one of the court’s leading liberal voices. In that case, Republicans rushed to confirm Justice Amy Coney Barrett, bolstering the court’s conservative majority. Ultimately, Trump’s nominees supplied the votes needed to overturn Roe v. Wade.