WITH AMY CONEY BARRETT'S swearing-in on Monday, the Supreme Court is back to its full complement of nine justices. The size of the high court is mandated not by the Constitution but by Congress, which fixed the number of justices at nine in the Judiciary Act of 1869. Anytime Congress wants to change that number, it can do so — and quite a few Democrats, seething because Barrett's confirmation was pushed through by Republicans within days of an election that may cost the GOP the White House and its Senate majority, want Congress to do so ASAP.
Moments after the Senate voted to confirm Barrett, a slew of very liberal Democrats, including Representative Alexandria Ocasio-Cortez and Senator Ed Markey, tweeted: "Expand the court." But calls by Democrats to "pack" the Supreme Court — to enact a law increasing the number of justices if their party wins the presidency and control of Congress —began long before Barrett's nomination. When asked about court-packing during the presidential primaries last year, Senators Elizabeth Warren, Amy Klobuchar, Cory Booker, Kamala Harris, and Kirsten Gillibrand all said they were "open to the idea." One Democrat not open to the idea was Joe Biden. "I would not pack the court," he said in a debate last October.
Under pressure from his party's hard-left flank, Biden has softened his public opposition. For a few weeks he refused to answer when asked whether he would support court-packing as president. Last week he said he would appoint a bipartisan commission to study the issue for six months. Biden plainly doesn't relish the idea of rejiggering the Supreme Court's ideological balance by changing its size, and instinctively rejects it as a bad idea.
He should heed his instinct, for several reasons. . . .