By Rev. Ben Johnson*
The first presidential debate of 2020 reached an historic low in its the very first segment – not from Joe Biden calling the president a “clown” or telling him to “shut up,” nor from Donald Trump choosing to imitate Biden’s interruption-laden 2012 vice presidential debate performance on steroids. The debate descended into disaster when Joe Biden refused to answer whether he would pack the Supreme Court and alter the foundations of American justice.
Sadly, most viewers will remember the style of 2020’s first-presidential-debate-and-food-fight more than its (lack of) substance. To paraphrase a shopworn joke about the Holy Roman Empire, the presidential debate was neither presidential nor a debate. “It was a televised headache,” wrote Jon Gabriel of Ricochet. The transcript could reasonably read, “(Crosstalk, passim).”
However, the worst moment of the 2020 debate came when Joe Biden stonewalled on whether he would pack the Supreme Court, and outmatched moderator Chris Wallace let him do so with impunity. Worse, Biden used transparently political language to evade specificity about the future of our constitutional system. “Whatever position I take on that, that’ll become the issue,” Biden said. “I’m not going to answer the question.”
That continued Biden and Kamala Harris’ strategy of concealing their intentions from the American people in the heat of an election. Biden told Green Bay’s WBAY-TV the issue of expanding the number of Supreme Court justices is “a legitimate question, but let me tell you why I’m not going to answer that question. Because it will shift all the focus. … Let’s say I answer that question. Then the whole debate’s going to be, ‘Biden said, or didn’t say. Biden said he would or wouldn’t.’”
Kamala Harris likewise remained tight-lipped about the ticket’s views of whether to reshape a separate, co-equal branch of government for partisan advantage. When CNN’s Jake Tapper asked Harris about the issue Tuesday night, she replied: “We are 35 days away from an election that is probably the most important election of our lifetime and our children’s lifetime. … Joe has been really clear: Let’s focus on what’s happening right now. Deal with later, later.”
“Let’s not get distracted,” she continued, “because there’s a lot at stake in terms of the integrity of our democracy, of our election system.”
The reason for their reticence is not hard to divine. If the vice president says he favors packing the Supreme Court, he will lose the 54% of Americans who oppose the idea. If Biden comes out against a blatant judicial power grab, he will lose the 45% of Democrats who favor court packing. An ABC News/Washington Post poll taken last week shows that Republicans and independents oppose the idea by virtually identical margins (63 and 61%, respectively), while Democrats split almost evenly (45-39). A bifurcated base will not put Joe Biden in the White House.
Left to his own devices, the former Senate Judiciary Committee chairman would oppose stacking the judicial branch. The last time he stood on a debate stage in Ohio, last October, Biden said, “I would not pack the court” – a position he shares with Ruth Bader Ginsburg. However, the party’s left-wing has extracted meaningful concessions from Biden, whose tenuous grasp on power belies his assurances that “I am the Democratic Party.” As Barack Obama noted, “Joe already has what is the most progressive platform of any major party nominee in history.”
Furthermore, the leader of the party’s ascendant socialist wing, Alexandria Ocasio-Cortez, has rightly assessed that a President Biden would be impotent to repulse their demands. “I think, overall, we can likely push Vice President Biden in a more progressive direction across policy issues,” she said. On the issue of court packing, she tweeted, “We should leave all options on the table, including the number of justices that are on the Supreme Court.” Nor is she alone. Last year 10 Democratic presidential hopefuls, including Harris and Elizabeth Warren, said they favored or were open to the idea, and Chuck Schumer has since joined their ranks.
If Biden and Harris want to change the number of Supreme Court justices for the first time since 1869, that further heightens the importance of this election. In his press release opposing the nomination of Amy Coney Barrett, Biden noted that “Supreme Court decisions affect their everyday lives” vis-à-vis the Affordable Care Act, abortion-on-demand, and other issues; therefore, Americans should “have their voice heard on who serves on the Court.”
If the vice president believes that the voters should decide who makes one appointment to the Supreme Court, shouldn’t they have the same right to determine whether the next president makes five or six appointments? If Biden believes Americans should have a say in whether to overturn Roe v. Wade – a constitutionally impossible bit of judicial activism that is 31 years younger than Joe Biden – shouldn’t they have some voice on whether to preserve the 151-year-long composition of the court itself? After all, as Biden told the NAACP in June, “Presidents come and go,” but “the courts will remain for generations.”
Aside from justices’ lifetime tenure, the judicial branch holds a unique role in America’s constitutional system: Justices are not only to uphold the Constitution but also to defend the American people against what Alexander Hamilton called in Federalist No. 78 the “occasional ill humors in the society,” including “dangerous innovations in the government” and “the arts of designing men.” Realizing the separation of powers demands that justices not be overly beholden to any one individual. Hamilton noted that “liberty can have nothing to fear from the judiciary alone, but would have every thing [sic] to fear from its union with either of the other” branches of government. Could a 15-member Supreme Court, 40% of whom owe their appointment to the same man (or woman), be said to be independent of that president?
Congress should act to shut down partisan power plays and preserve the independence our Founding Fathers envisioned. Congress should adopt a constitutional amendment to limit the Supreme Court to nine members. I would humbly suggest that the two bills pending before Congress – House Joint Resolution 53 introduced by Rep. Mike Gallagher, R-Wis., and Senate Joint Resolution 14 introduced by Sen. Marco Rubio, R-Fla. – be amended to further eliminate any possibility of altering the shape of the court. The proposed amendment reads, “The Supreme Court of the United States shall be composed of not more than 9 justices”; the text should be amended to say the court may not be made up of “more or less” than nine justices, to eliminate court-shrinking by a hostile Congress. The amendment would normalize the standard of justice that has long guided our nation.
People of faith should be especially wary of schemes to change the ground rules of justice for fleeting personal advantage. The Bible says, “Divers weights, and divers measures, both of them are alike abomination to the Lord” (Proverbs 20:10). Bible commentator Matthew Henry wrote that God “will not prosper the trade that is thus driven, nor bless what is thus got. He hates those that thus break the common faith by which justice is maintained.”
Joe Biden’s views on packing the Supreme Court, and those of his party’s base, demand a hearing before our republic’s most authoritative judges: the American people.
*About the author: Rev. Ben Johnson is Executive Editor of the Acton Institute’s flagship journal Religion & Liberty and edits its transatlantic website.
Source: This article was published by the Acton Institute