President Barack Obama had the opportunity — or should have — to fill Justice Antonin Scalia’s seat in 2016 and give liberals a majority on the Supreme Court for the first time since the Nixon administration. But he didn’t get that opportunity. Instead, Republicans blocked him under a new stricture they invented, audaciously named the “Biden rule,” which decreed that no Supreme Court vacancy that arises in the final year of a president’s term may be filled.
The Biden rule got its name from an exaggerated reading of a 1992 speech by then-Sen. Joe Biden, where the future Democratic presidential nominee argued that then-President George H.W. Bush “should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed” if a vacancy arose on the Supreme Court.
The question four years later: Are Republicans serious about their adopted rule? Will they risk Biden himself filling the seat left vacant by Ruth Bader Ginsburg if Trump loses in November? McConnell’s been clear: The answer is no. On Friday night, a few hours after news of Ginsburg’s death, McConnell said Trump’s nominee would get a vote.
Trump is still president for at least a few more months. Democrats are in the minority in the Senate (although the Democratic “minority” represents 15 million more people than the Republican “majority”). These two facts matter because the Constitution gives the president the power to nominate judges and the Senate the power to confirm those judges.
Right now Republicans have a 53-47 vote majority in the Senate. That means that, unless Democrats can somehow convince four Republican senators to honor the so-called “Biden rule,” Ginsburg’s seat is being filled by Trump.
But if Democrats win both the presidency and the Congress, they can ensure that the GOP supermajority on the Supreme Court will be short-lived. They could pack the Court.
Court-packing and the Constitution
The Constitution provides that there must be a Supreme Court, but it does not set the number of justices — that number is set by Congress. The Judiciary Act of 1789 originally established a six-justice Court, and this number vacillated considerably during the nation’s first century. The number of justices briefly grew to 10 during the Lincoln administration, before finally settling at nine under President Ulysses S. Grant.
If Democrats control the White House and the Congress, in other words, they can pass a law adding seats to the Supreme Court. If Biden is president, he could then quickly fill them (with the consent of the Senate). And four new seats could give Court a Democratic-controlled majority, despite another Trump pick.
It’s a risky play. At the height of his popularity, President Franklin Roosevelt proposed expanding the size of the Supreme Court to 15 in order to neutralize five reactionary justices who frequently undercut the New Deal. It did not end well for him. Many historians cite the court-packing plan as the event that shattered Roosevelt’s political coalition and left him unable to pass liberal bills through Congress.
But these are very different times. In 1937, when Roosevelt proposed packing the Court, every one of the Court’s nine justices could claim that they got there fair and square. No one was on the Supreme Court because one political party invented a fake rule, applied it harshly to a president they loathed, and then immediately scrapped that rule when it was inconvenient.
Trump’s two previous Supreme Court appointees, Justices Neil Gorsuch and Brett Kavanaugh, also share a dubious distinction. They are the only members of the Supreme Court in history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. If Trump fills the Ginsburg seat, fully one-third of the Court will be controlled by judges with no democratic legitimacy.
Democrats may also be able to use the threat of court-packing as leverage.
Biden, congressional Democrats, and Democratic candidates for Congress could all pledge that they will pack the Court if Republicans confirm a Ginsburg replacement. That might be enough to convince four Republican senators to hold off on confirming a new justice.
As it stands now, even if Biden fills the seat, Republicans would still control a majority of the Supreme Court. They have a lot to lose if Democrats successfully pack the Court with several new justices.
No one should feel confident in this option. It is overwhelmingly likely that Republicans will confirm a loyal Republican judge to fill Ginsburg’s seat, and that they will do so swiftly. But Democrats still have one tool left in their chest. And if they don’t use it, well, Trumpism is likely to dominate the Supreme Court for decades or more.