Mitch McConnell
Credit: Gage Skidmore/Flickr

The last few days have seen sudden, intense press interest in the question of whether Joe Biden intends to “pack the courts.” The question came up at the vice-presidential debate between Vice-President Pence and Senator Harris, and it seems that Biden gets asked about it repeatedly at every press avail. For their part, Biden and Harris have mostly been playing coy with the answer, insisting that it’s an irrelevant question that shouldn’t come up until after the election.

It’s no great secret why: “packing” the court might scare off moderates currently leaning toward Biden, while committing against it would infuriate progressives who fear that a far-right Supreme Court would reverse a century of hard-won victories as well as stymie all future attempts at progressive legislation.

The problem, however, is that the entire conversation is in bad faith. It is Republicans who have spent the last six years “packing” the courts. Republicans in the Senate mounted a historic blockade of President Obama’s judicial nominees during the final two years of his second term, resulting in shortages on federal benches and backlogs in cases, all in the hopes of leaving them open for a Republican president. Republican Senate Leader McConnell has been laughing about it for years, considering it finest accomplishment. Most crucial was the refusal by McConnell to even allow a hearing for Obama’s Supreme Court nominee Merrick Garland, using the fig leaf justification that it was during the 2016 election year–only to attempt to rush through a far-right justice to replace Ruth Bader-Ginsburg literally just days before the 2020 election. Hypocrisy is a mainstay of American politics, but even so the brazenness of this case by Republican Senators like Lindsey Graham is remarkable.

The result of the Republican strategy has been a historic packing of the courts by ultra-conservative activist judges. As of this writing, Trump and the Republican Senate have confirmed an astonishing 218 federal judges, mostly conservative white men, many of them deeply unqualified far-right activists with little judicial experience. These judges have altered the balance not only of the Supreme Court, but also myriad lower circuit courts. These judges are not just temperamentally and philosophically conservative: most are committed Republican partisans, approved by the arch-right Federalist Society, and subscribe to a view of the Constitution in Exile premised on the belief that essentially every progressive reform since the New Deal and even Teddy Roosevelt has been an unconstitutional infringement on corporate and property rights. It is a degree of far-right judicial radicalism that most Americans barely begin to appreciate, only because the cases challenging long settled law have only just begun to wind their way through the courts.

The other important context for this Republican court-packing is that it reflects an attempt to control national policy even as conservatives lose the ability to win elections nationally. Conservatives already govern illegitimately through an array of anti-democratic structures that make white exurban conservative voters count much more than urban liberal voters and people of color. Many of these structures were explicitly set up by the Founders or in the Jim Crow era to benefit Slave States and former Confederate States. The electoral college has allowed Republicans to control the White House for 12 of the last 20 years despite winning the popular vote only once during that time–and the process itself warps presidential elections toward the interests of more conservative-leaning voters in “swing” states. The Senate is controlled by a Republican “majority” despite the fact that Democratic Senators represent 15 million more Americans than Republican Senators do. State legislatures and House seats are gerrymandered such that Republicans dominate many state legislatures despite losing the statewide vote, and control more House seats than they would if districts were drawn across the country in non-partisan fashion. That’s on top of active voter suppression efforts in many states that work to shut out the rising voices of young people, urban progressives and people of color.

The fact that a president elected by minority vote, aided by a Senate representing a minority of Americans, in a system already designed to advantage conservative voices over liberal ones, should be able to rig the courts for decades with judges who will not only thwart future legislation but reverse hard-won gains, is an absurd insult to democracy. The courts have already been packed. If Barrett is confirmed to the Supreme Court, they will have been intolerably packed, in the service of a revanchist apartheid regime designed to overrule America’s growing progressive majority and prevent it from solving pressing crises like inequality, corporate consolidation and climate change.

The question for Democrats and a potential Biden/Harris administration is not whether to “pack” the Courts; they have already been packed. The question is how to rebalance them. Biden put it succinctly today when he said that “the only court packing going on right now is with Republicans packing the court.”

Rebalancing the court could take many forms. The simplest is adding justices to both the Supreme Court and the lower courts, something that has been done many times in American history. This solution is Constitutional and easy to enact by a simple majority. Many fear that this could lead to runaway partisan court-stacking in future years, but even so it would only be possible when one party controls the White House, Senate and House. As long as the courts remain key to legislation, it seem reasonable that a party that wins all three should be able to control the courts as well until the other side takes similar control. If Republicans fear that they will never again control all three, then they may wish to attempt to cater their politics toward winning national majorities instead of extremist minorities.

Other more complicated solutions involve potential term limits for justices or judicial rotations. All of these ideas and more should be on the table as a way to rebalance the judiciary to fix conservative court packing.

But Republicans should not be allowed to get away with packing the courts with extremists, then scaring voters into thinking that Democrats are the ones with radical proposals. And the press should not get sucked into being willing accomplices. Whatever Democrats must do to rebalance the courts will be an important discussion for after the election, should Democrats be successful. For now, the focus should remain on the shameful methods by which the radical conservative movement is attempting to further pack the courts at this very moment.

David Atkins

Follow David on Twitter @DavidOAtkins. David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.