Biden would have options beside court-packing, experts say

Legal scholars said Thursday that Democratic presidential nominee Joe Biden, assuming he wins the presidency along with a Democratic Congress, would have a variety of options if he chose to try to combat a conservative Supreme Court.

In an excerpt from a "60 Minutes" interview released Thursday, Biden said he would "put together a bipartisan commission of constitutional scholars to come back with a recommendation for how to reform the court system because it's getting out of whack."

Biden's comments follow pressure from liberals to add justices to the Supreme Court if he defeats President Donald Trump in the Nov. 3 election and Democrats win a majority in the U.S. Senate.

The former vice president made no commitment to advocating any particular proposal, echoing his previous lack of enthusiasm for expanding the court. "The last thing we need to do is turn the Supreme Court into just a political football," he said.

Biden's comments about the Supreme Court were released on the same day the Senate Judiciary Committee voted to approve 7th U.S. Circuit Court of Appeals Justice Amy Coney Barrett for the seat left vacant by the death of Justice Ruth Bader Ginsburg.

All 12 Republicans on the committee voted to confirm Barrett, while all Democratic senators boycotted the vote. With the GOP in the majority, she is expected to be confirmed Monday.

If Barrett is confirmed, she would be the sixth Republican-appointed justice on the nine member court. Some liberals say they fear the new court will invalidate the Affordable Care Act, Roe v. Wade, and laws passed by a Democratic Congress if they win the election.

Law professors and historians said Thursday there is nothing in the U.S. Constitution to prevent a Democratic Congress from adding justices to the court, although they would need to eliminate the Senate filibuster first.

The Constitution does not fix the number of justices. It's set by statute and has fluctuated from six to 10 before settling at nine in 1869. President Franklin D. Roosevelt attempted to add justices to the court in 1937, but his court-packing proposal was rejected in Congress.

"The size of the court is entirely in control of Congress," Princeton University professor Keith E. Whittington said in a telephone interview.

Samuel Moyn, a Yale University professor, said opponents of such a proposal would likely argue that a nine-member court is so established by now that it's an "implicit rule."

But Christopher J. Sprigman, a professor at New York University School of Law, said such an argument might work politically but would be laughable as a legal argument against expanding the court.

Michael W. McConnell, a professor at Stanford Law School who previously served as an appointee of President George W. Bush on the 10th U.S. Circuit Court of Appeals, said there is "nothing in the text" of the Constitution to support an argument against expanding the court.

He is horrified by the proposal, however, calling it "a Constitution-killing idea," but said he does not believe the court would strike it down.

"It is completely clear that Congress can change the number," said Notre Dame Law School professor Richard W. Garnett, a former clerk of Supreme Court Chief Justice William H. Rehnquist. "It doesn't matter, legally, that it's been nine for a really long time."

Harvard Law School professor Michael Klarman said opponents of court expansion could focus on tradition. "So, yes, you could imagine the court invalidating," he wrote in an email. "However, I think, practically, this probably wouldn't happen."

Expanding the Supreme Court would not be the Democrats' only option. Several legal scholars argue that Congress could pass legislation with a provision making it unreviewable by the U.S. Supreme Court.

It has happened before. In 1867, publisher William McCardle printed articles in his Mississippi newspaper advocating opposition to Reconstruction-era laws passed by Congress. A military commander jailed him for violating the Military Reconstruction Act of 1867.

McCardle filed a habeas petition with the U.S. Supreme Court arguing his incarceration violated his due process rights. Congress then suspended the court's jurisdiction over the case.

The Supreme Court ruled Congress may withdraw jurisdiction under the exceptions clause of Article III, Section 2 of the Constitution. Ex parte McCardle, 74 US 506 (1869).

Garnett agreed Congress "can strip the court of appellate jurisdiction in various matters, if it chooses," he wrote. "The Constitution is explicit about this."

Most legal scholars say Congress could strip the high court of appellate jurisdiction, leaving matters to be decided in courts of appeal. So the court could protect administrative agencies from adverse Supreme Court rulings by keeping any litigation in the D.C. Circuit Court of Appeals.

McConnell concedes Congress can make exceptions to appellate jurisdiction but said it would create a mess of decisions by various federal appeals courts and state courts.

"It's just a recipe for chaos," he said in a telephone interview. "That's no way to run a country."

Biden and the Democrats could also adopt other changes, such as term limits for the Supreme Court judges, but that would require a constitutional amendment.

Senate Republicans, concerned about a possible plan to expand the court, have introduced a constitutional amendment declaring the Supreme Court shall be composed of nine justices.

Passage of any constitutional amendment will be extremely difficult, legal scholars say.

Sprigman said he believes courts have gotten "out of control. ... We're not fighting our political battles in the legislature. We're fighting them in the courts by proxy."

McConnell is skeptical the battle over the courts will get that far, saying Biden -- facing a choice between the Democratic Party base and polls showing court packing is unpopular with the general electorate -- punted the decision to a commission.

"This is his way of not answering the question," he said.