Biden Says He’ll Reveal Position on Court-Packing After Election

October 8, 2020 Updated: October 9, 2020

Democratic presidential nominee Joe Biden said he will reveal his position on “packing” the U.S. Supreme Court after the election is over.

“You’ll know my opinion on court-packing when the election is over,” Biden told reporters on Oct. 8 during a campaign event in Phoenix. “It’s a great question, and I don’t blame you for asking. But you know, the moment I answer that question, the headline in every one of your papers will be on the answer to that question.”

The comment followed a day after Vice President Mike Pence debated with Sen. Kamala Harris (D-Calif.), Biden’s running mate. During the debate, Pence accused Harris of providing a “non-answer” about the Biden-Harris ticket’s plans.

Packing the court means expanding the Supreme Court beyond its current nine-seat threshold. Some Democrats have suggested the move if Republicans try to confirm Judge Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg, who died last month, saying it would allow Democrats to nominate liberal justices to the bench.

Harris on Oct. 7 responded to Pence’s questions about court-packing by deflecting to Republicans’ plans to nominate Barrett.

Mike Pence and Kamala Harris speak
(L) U.S. Vice President Mike Pence and Sen. Kamala Harris (D-Calif.) speak during the vice presidential debate in Kingsbury Hall at the University of Utah in Salt Lake City on Oct. 7, 2020. (Eric Baradat/AFP via Getty Images & Robyn Beck/AFP via Getty Images)

“Once again you gave a non-answer; Joe Biden gave a non-answer,” Pence said during the debate. “The American people deserve a straight answer. And, if you haven’t figured it out yet, the straight answer is they are going to pack the Supreme Court if they somehow win this election.”

“Are you and Joe Biden going to pack the court if Amy Coney Barrett is confirmed? Are you going to pack the court?” Pence also said. “Your party is actually openly advocating adding seats to the Supreme Court, which has had nine seats for 150 years, if you don’t get your way.”

Harris didn’t respond to the claim.

During Biden’s first debate with Trump last week, Biden didn’t provide a definitive answer to moderator Chris Wallace of Fox News.

“Whatever position I take in that, that’ll become the issue,” Biden said. “The issue is the American people should speak. You’re voting now. Vote, and let your senators know how you feel.”

In order to pack the Supreme Court, Democrats would have to win the White House and Senate and possibly abolish the Senate filibuster.

In 1937, former President Franklin D. Roosevelt tried to add extra associate justices to force through parts of his New Deal that were ruled unconstitutional.