Control of the U.S. Senate now turns on the two run-off races being held in Georgia on January 5.   Democratic hopes about “packing” the U.S. Supreme Court with additional justices are at stake in these elections.

Under Georgia’s election law, when no candidate receives an outright majority of over 50%, a second run-off election is held between the top two contenders.  Two seats are at stake because former Senator Johnny Isakson resigned at the end of last year due to ill health.  Governor Kemp appointed Kelly Loeffler to the seat. However, she must face voters to continue for the remaining two years of the six-year term. 

With Republican victories, the party would hold a majority with 52 seats, given currently presumed outcomes in other races. However, Democratic victories would shift the balance of control to the Vice President in a 50-50, evenly divided Senate.  Under a Biden Presidency, that would give Kamala Harris the deciding vote and with it the prospect of a Democratic attempt to pack the Supreme Court with additional justices. 

The Biden-Harris threat to upend the Supreme Court’s constitutional role needs to be taken very seriously. Again, and again on the campaign trail, Joe Biden and Kamala Harris had multiple opportunities to promise not to try court packing.  Instead, they telegraphed a very clear preference to take this extreme step.

Biden has ducked and weaved on court packing.  First, he said he would not answer the question,[i] then he said he would answer “when the election is over,”[ii] and next he said he would answer before the election.[iii]

Finally, he proposed a bipartisan commission after the election to “study” the issue.  Biden told Norah O’Donnell of CBS News: “If elected, what I will do is, I’ll put together a national commission, a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative.  I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of wack” [iv] [v]

Note that Biden describes the current system as “out of whack,” and that he does not say that he would follow the commission recommendations. Never once, though, has he ever ruled court packing out.  Were Biden ever to get the chance to enlarge the Supreme Court with additional Democratic judges, he can never be said to have broken his word.

During the Vice Presidential debate, Kamala Harris made her preference quite clear. [vi] Try as he might to get her to oppose court packing, Vice President Pence was unable to do so.  Her evasion of numerous opportunities for a direct answer to rule it out speaks volumes.     

Fifty-eight percent of likely voters oppose increasing the Supreme Court’s size, based on an October New York Times and Siena College poll. Only 31% said they were in favor of court-packing, while 11% were undecided. However, sharp partisan differences exist.  Among registered Republicans, 89% were against court packing. Yet 57% of registered Democrats supported it, with only 28% opposed.[vii]

Such a radical change to the Supreme Court would fundamentally transform the nature of our legal system, reducing certainty and continuity. Our founding fathers understood this by providing Judges with life tenure in the Constitution. This explicitly frees the judiciary from the partisan whims that court-packing suggests. Instead, every change in the Presidency could result in dramatic changes in the direction of the law.

Existing Senate rules would restrain Senate Democrats. Yet in 2013, Senate Democrats succeeded in reducing the supermajority hurdle for Supreme Court nominations. (They now regret their change because it permitted both Neil Gorsuch’s and Amy Coney Barrett’s confirmations without supermajorities.)

All of which makes the outcome of the Georgia run-off elections so important. Victories by Senators Kelly Loeffler and David Perdue would close-off the prospects of a Biden-Harris court-packing effort.  The reverse, the election of Jon Ossoff and Raphael Warnock, sets up a scenario in which the Vice President might be the deciding vote on court enlargement. 


[i] https://www.nbcnews.com/politics/2020-election/biden-punts-expanding-supreme-court-gop-plows-ahead-replace-ginsburg-n1240746

[ii] https://www.cnn.com/2020/10/08/politics/joe-biden-supreme-court-packing/index.html

[iii] https://www.cbsnews.com/news/court-packing-joe-biden-town-hall/

[iv] https://www.youtube.com/watch?v=enEzm-QL5RY

[v] https://www.nytimes.com/2020/10/22/us/politics/biden-supreme-court-packing.html

[vi] https://www.youtube.com/watch?v=fuJj2XTdRd8

[vii]    https://scri.siena.edu/2020/10/20/the-new-york-times-siena-college-national-poll-biden-leads-trump-50-41/    https://www.foxnews.com/politics/majority-americans-oppose-court-packing-poll