The Real Answer on Court Packing

 So, what is the right answer for the Biden/Harris campaign when asked about court packing?  

Joe Biden's answer is probably politically the best -- to say the only court packing he knows about is being done by the Republicans, and introduce a bill of particulars.

But the real answer is not one that can be said officially.  And that is that sometimes the threat to pack the court can be an effective alternative to actually packing the court.  

FDR's threat to pack the court is an obvious precedent.  He didn't do it.  But the threat was enough to intimidate at least one justice into switching his vote and allowing the New Deal to stand -- the switch in time saved nine.  Besides, the justices blocking the New Deal were old and Roosevelt held office for twelve years. That allowed him to "pack" the court with new appointments without actually having to expand it.*

Consider, then, some of the alarming prospects of a 6-3 conservative majority on the Supreme Court.  The one most often discussed is that they might repeal Roe v. Wade, the Supreme Court decision declaring abortion a constitutional right.  I personally believe that Roe v. Wade was wrongly decided, and many states have placed so many restrictions on abortion as to effectively be a ban.  Nonetheless, a repeal of Roe would create a political hot potato that a whole lot of politicians would prefer not to deal with.

Or they might repeal Obergefell v. Hodges, the case that found gay marriage to be a constitutional right.  I personally believe that decision was also wrongly decided, and that advocates of gay marriage should have trusted in the slower but more legitimate process of the political system.  Nonetheless, a repeal would throw a great number of marriages into jeopardy and doubtless generate political outrage.

But that would be nothing compared to the outrage if the Supreme Court were to strike down Obamacare and overnight strip 20 million people of their health insurance and end protections for pre-existing conditions.

Other, less dramatic but reversals might be Chevron v. Natural Resources Defense Council, which held that the Supreme Court would defer to a regulatory agency's interpretation of the statute it was enforcing, so long as its interpretation was reasonable.  Others fear the Supreme Court might declare regulatory agencies unconstitutional altogether, or end the private right of enforcement of federal regulations.  Such rulings would be more arcane, but the consequences would be absolutely real.

But here is the thing.  The Supreme Court pretends to be immune to political pressure.  It isn't.  Currently, any proposal to add two justices to the Supreme Court would be highly controversial and meet with considerable outrage. It is by no means clear that elite opinion would countenance such a move.  (Public opinion might find the whole thing two arcane to care).

But f the Supreme Court were to declare numerous marriages invalid, or to strike down some generally accepted federal regulation, or prevent enforcement of environmental laws, let alone strip 20 million people of their health insurance, public outrage of the decision would complete drown out any outrage over court packing, and the expansion should be easy to pass.

Presumably the Supreme Court will take that into account in deciding cases.

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*An older precedent is Thomas Jefferson.  The Federalist Congress during the lame duck session had just vastly expanded the federal judiciary, and the lame duck John Adams appointed a lot of Federalist judges.  Jefferson tried to have one of them impeached for making highly partisan decisions upholding the Alien and Sedition Acts.  The impeachment was not successful, but it did sufficiently intimidate the Supreme Court that it allowed Jefferson's party to repeal the expansion of the judiciary.