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Joe Biden’s court-packing alternatives 

23 October 2020

5:01 PM

23 October 2020

5:01 PM

After months of dodging questions from the press and his opponent, Joe Biden has finally announced his position on packing the Supreme Court: Maybe!

In an interview with 60 Minutes, Biden said that, if elected, he will convene a ‘bipartisan commission’ of illustrious scholars to meet for 180 days, and produce recommendations on how to change the Supreme Court.

Well, what was so hard about that? But instead of pleasing people, Biden’s answer seemed only to irritate. Conservatives see Biden’s answer as an effort to hide court packing behind a facade of academic legitimacy and phony bipartisanship. Progressives, meanwhile, see Biden’s blue-ribbon committee as a fancy and prestigious way to promise action and then do nothing.

Cockburn doesn’t find that terribly interesting. He’s more focused on something else. Biden said his committee’s options would go ‘well beyond packing’. So, besides simply shoving another two or four or ten justices onto the Supreme Court, what other strategies does Biden have to remake the nation’s judiciary?

Extreme Court: The public is thoroughly distracted by the idea of President Biden adding new justices to the Court. Biden could throw them all off, though, with an alternative solution: Simply create a brand new court, higher even than the Supreme Court, and call it the Extreme Court. Its chambers could be built directly atop the existing Supreme Court building, and it could be given a writ to interpret all constitutional law through the lens of Critical Race Theory. Sure, this is technically unconstitutional, but if the Supreme Court tries to say so, the Extreme Court can simply overrule them, and perhaps castigate the Justices for their white privilege at the same time.


Downsides: Adding four extra stories to the Supreme Court building could be structurally unsound.

The People’s Court: Defenders of court packing like to point out that the Constitution never specifies a maximum size for the Court. That is quite true: There is literally no maximum to it. So if Biden wants a Supreme Court that more closely tracks the will of the people, why not make the Court and the people one and the same? Appoint all 330 million Americans as Supreme Court justices, and unpopular rulings will be a thing of the past.

Downsides: With more than 300 million justices, dissents and concurrences could get rather long.

The High Court: The SCOTUS is already popularly-known as the highest court in the land. With the war on drugs less popular than ever, Biden could make that popular designation a literal one: Order the Court to hold all its deliberations while on marijuana, peyote, or some other fitting substance. With chill vibes and good times for all, liberal rulings are sure to be plentiful.

Downsides: Deliberations may routinely be sidetracked by hunts for cheap midnight pizza or discussions of how loud the colors are.

The Supremes Court: Motown’s flagship group had twelve Billboard #1 hits and at its apex even rivaled The Beatles for global popularity, giving them far more popular cachet than some drab appeals court judges. Seven former members of The Supremes are still alive, but all are elderly. A one-time admission of all of them to the Supreme Court would fulfill Biden’s promise to appoint a black woman to the court and then some, without permanently altering the Court in the long run.

Downsides: Judicial proceedings may occasionally be ordered to stop in the name of love.

Snacking the Court, brought to you by Nabisco®: The radical right-wing opinions so many fear from President Trump’s Supreme Court may not be rooted in unwavering far-right judicial convictions. They may simply be rooted in nagging hunger. Enter the Court Snacking scheme, funded by Nabisco. With unlimited quantities of Oreos, Triscuits, Cheese Nips, and Wheat Thins available to the justices, their spirits and blood sugar will be raised, unleashing a torrent of more progressive jurisprudence.

Downsides: None

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