Biden raises possibility of rotating Supreme Court justices

Joe Biden
Democratic presidential candidate, former Vice President Joe Biden, speaks during a campaign event on January 3, 2020, in Independence, Iowa. Biden spoke about foreign policy and domestic issues. |

Democratic presidential nominee Joe Biden expressed openness to the idea of rotating Supreme Court justices during a campaign stop in Pennsylvania Monday.

Biden’s appearance came one day after CBS’ “60 Minutes” aired an interview with the former vice president. CBS Evening News host Norah O’Donnell, who conducted the interview, explained in a voice-over that “Mr. Biden is under pressure from his own party to consider increasing the number of justices if elected. It’s called court packing and while he said he’s no fan of the idea, he’s never completely ruled it out.”

“If elected, would you move to add more justices to the Supreme Court?” O’Donnell asked Biden. “If elected, what I will do is I will put together a … bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative, and I will ask them to over 180 days to come back to me with recommendations as to how to reform the court system because it’s getting out of whack,” he replied.

“It’s not about court packing, there’s a number of other things that our constitutional scholars have debated and I’d look to see what recommendations that commission might make.”

At his campaign stop in Chester, Pennsylvania, Monday, Biden was asked if he was open to establishing term limits for Supreme Court justices, who currently serve lifetime appointments. The candidate responded in the negative: “It’s a lifetime appointment. I’m not going to attempt to change that at all.”

“There’s some literature among constitutional scholars about the possibility of going from one court to another court, not just staying always the whole time on the Supreme Court,” he said. Biden stressed that he had made “no judgment” as to what changes he would like to be made to the Supreme Court, describing his proposed commission as “a group of serious constitutional scholars who have a number of ideas how we should proceed from this point on.”

“I’m going to give them 180 days, God willing, if I’m elected, from the time I’m sworn in, to be able to make such a recommendation,” Biden said.

The idea of rotating Supreme Court justices was raised by Sen. Bernie Sanders, I-Vt., during the 2020 presidential campaign. He contended, “I do believe that constitutionally we have the power to rotate judges to other courts.”

The Heritage Foundation, a conservative think tank, disagrees with his analysis.

Thomas Jipping, deputy director of the Heritage Foundation’s Center for Legal and Judicial Studies, explained that Sanders’ proposal would “allow a president to remove a Supreme Court justice in active service and send him, even involuntarily, to a lower court.” According to Jipping, “rotating a justice off the Supreme Court and converting his or her status to a judge on the new court would run afoul of” the Constitution.

“The Constitution does not empower presidents to make general appointments to undefined positions somewhere in the judiciary, and to move them around whenever they choose,” he wrote. Jipping warned that the proposal to rotate justices would enable a president to “banish a justice he did not like to some other court for the rest of his judicial life.” He referred to “rotation” as “simply packing the Supreme Court by other means.”

The idea of court packing was previously raised in the 1930s by President Franklin Roosevelt, a Democrat. He wanted to increase the size of the Supreme Court so that justices appointed by him would dilute the votes of the sitting Supreme Court justices who found his New Deal programs unconstitutional.  

The Democratic-led Senate rejected Roosevelt’s proposal and the number of Supreme Court justices has remained at nine for more than a century and a half. In 1983, Biden, whose vice presidency was preceded by a decades-long career in the United States Senate, described Roosevelt’s push to enlarge the Supreme Court as a “bonehead idea” that “put in question, for an entire decade, the independence of … the most significant body in this country: the Supreme Court of the United States of America.”

The debate about court packing and changes to the Supreme Court comes as Democrats are fuming about the confirmation of Amy Coney Barrett to the court one week before the 2020 presidential election.

Barrett’s presence on the high court means that the third branch of government now consists of six Republican-appointed justices and three Democrat-appointed justices. Barrett replaces the late Supreme Court Justice Ruth Bader Ginsburg, who had earned folk hero status among the feminists and liberals that make up an important constituency of the Democratic Party.

Democrats have expressed concern that the Roe v. Wade Supreme Court decision that legalized abortion nationwide and the Affordable Care Act will meet their demise with Barrett on the court.

Notably this year, at least one Republican-appointed justice joined liberal justices in two cases involving abortion and gender identity.

In the case of Bostock v. Clayton County, Georgia, two Republican-appointed justices, Neil Gorsuch and John Roberts, joined the four liberal justices in ruling that it is a violation of civil rights law to fire an employee based on their sexual orientation or gender identity. 

In the case of June Medical Services v. Russo, Roberts joined the liberal justices in ruling that a Louisiana state law requiring abortion providers to have admitting privileges at nearby hospitals was unconstitutional.

Calls to expand the size of the Supreme Court immediately followed Barrett’s confirmation Monday. Reps. Alexandria Ocasio-Cortez, D-N.Y., and Ilhan Omar, D-Minn., outspoken voices in the progressive wing of the Democratic Party, sent out tweets, saying, “Expand the court.”

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