While new President Joe Biden has not explicitly come out and said he’s going to pack the court if things don’t go his way, he hasn’t denied he would do so either.

Indeed, one of Biden’s early acts was to establish a “commission” to look into “changes” to the Supreme Court of the United States.

It’s a useful threat to dangle over the heads of both Republicans and the Court alike, despite the inherent dangers of going down that path.

A little history here, while the Constitution sets out that there must be a supreme court, Article III Section 1 stating: 

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

It is, however, left up to Congress to decide how many judges sit on the Court. The Judiciary Act of 1789 established the Court with six justices and the number of seats have varied from a low of five to a high of 10, but shortly after the Civil War the number of seats was fixed at 9 and has been there — despite an attempt by Franklin Delano Roosevelt to expand it in 1937 — ever since.

Biden is under pressure by progressives — not thrilled with 6-3 Republican-appointed and roughly 5-4 Originalist majorities on the court — to add new justices, attempt to impose term limits and expand the lower courts. The last two being far more likely than court packing.

But threats are generally more effective as threats — you can only sentence someone to death once after all — and in an opinion piece for the Odessa, Texas, American Vice President of Public Policy at Americans for Limited Government Robert Romano argues that is what the commission — and Biden’s explicit refusal to rule out court packing — is about.

Romano notes:

… it’s hard to ignore the Biden threat. On Oct. 10, 2020, Ross DiMattei on KTNV told Biden that “packing the courts” is “the number one thing I’ve been asked about from viewers in the past couple days” and asked, “Don’t the voters deserve to know?”

To which Biden declared, “No they don’t [deserve to know] — I’m not going to play his game. He’d love me to talk about, and I’ve already said something on pack[ing] the court. He’d love that to be the discussion instead of what he’s doing now.”

That followed Biden in Phoenix on Oct. 8 similarly refusing to answer the question on court-packing, stating, “You’ll know my position on court-packing the day after the election.”

Of course we still don’t know, and that’s the point. On March 26th, the Supreme Court is set to consider whether or not to take a case called New York State Rifle & Pistol Association Inc. v. Corlett. This case challenges the licensing requirements in New York and whether or not the state can prohibit ordinary law-abiding citizens from carrying handguns outside the home for self-defense.

On its face, the answer would appear to be “no.” Heller and McDonald both established a fundamental, individual right to self defense. 

However, if the court does not take up the case — for whatever reason — a lower court ruling upholding the NY licensing requirements will stand. 

And the Roberts court has been remarkably resistant to taking up significant 2A cases since McDonald.

Which, is Romano’s point:

In other words, patience. If Biden’s implied threat to pack the court is working, then you might not expect to see any profound rulings this year or even next year that rock the boat constitutionally. It could be that the new conservative majority is not looking to provoke the Democratic controlled Congress. But after 2022, Democrats may no longer be in a position to pack the Supreme Court. 

We may get a better idea of the Court’s strategy (if there is one) on March 29th, which is the earliest that the justices would announce that they’ve accepted or rejected the Corlett case. If they do grant cert, expect the court packing threats to intensify shortly thereafter.

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