Joe Biden refuses to say whether he will support packing or expanding the Supreme Court to ensure a progressive majority if he is elected president. Given that such a move would be the most significant change in how America is governed in recent memory, and a break with 150 years of precedent, it is fair to conclude that his refusal to reject the option means he is open to it.
But the idea of “packing the court” is somewhat esoteric for many Americans not glued to the machinations of our federal government. Should the Democrats choose to expand the court by at least four members to provide for a 7-6 majority assuming Judge Amy Coney Barrett is confirmed, it is important for Americans to understand how this drastic maneuver will change their lives and their country.
Let’s lay out five potentially major changes to American life and society that court packing would result in.
1. Gun Rights
“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics.” This was written in an amicus brief from Sen. Sheldon Whitehouse and four other Democrats in a 2019 case involving the NRA and the State of New York. It was an implicit threat to pack the court if it refused to side with Democrats on restrictive measures that would not even allow people to transport unloaded guns to a gun range. So in this case, we have a very good idea of what Democrats have in mind.
A 7-6 progressive majority on the court would very likely overturn decades of precedent that have protected gun owners from both state and federal attempts to deny them their Second Amendment rights. Millions of American gun owners would be subject to these changes and the laws, which Democrats, some of whom are committed to confiscating guns, would impose.
2. Free Speech
The most obvious change to free speech laws that would come with a progressive majority on the Supreme Court would be the overturning of the 2010 5-4 Citizens United decision. In that decision the conservative justices found, in keeping with precedent, that corporations, or people pooling their resources, do in fact have a right to political speech. A potential reversal of that decision would open the door to a huge array of efforts by the government to restrict the speech of citizens who unite to make it.
More broadly, speech laws such as those that exist in New York City requiring people to use preferred pronouns even if they do not believe that gender is mutable, would find a much kinder hearing in the new court. Public schools and colleges would also suffer far greater restrictions than currently exist on what kind of political and cultural speech may be allowed.
There are a whole host of issues surrounding abortion that a new progressive majority would impact, from parental notification laws, to limits on how late in pregnancy abortion could be performed, to a state’s ability to regulate the abortion industry. The progressive reading of Roe v. Wade is almost limitless in its scope and perhaps the only question mark would regard the ability to kill babies even after they are outside of the mother. Beyond that, it is very likely that almost any state restrictions would be shot down.
4. Religious Liberty
Several religious liberty cases such as Hobby Lobby and Little Sisters of the Poor have been closely decided of late. It is safe to assume these decisions would be reversed. Practicing Christians and members of other faiths would face far greater restriction in living their faith in their public life. Our understanding of how we may practice our religions would undergo a major change, abandoning the American tradition of public faith, and limiting religious expression to the church and the home.
5. Election Laws
Voting, as we know it would be completely altered under a progressive majority in the Supreme Court. In all likelihood, a new progressive majority would be open to efforts to abolish the electoral college, to allow statehood for the District of Columbia and Puerto Rico, and to allow voting by people in the country illegally. All of these changes would skew towards the Democrats and could very well result in one-party federal rule of the United States.
These issues, not some vague idea of court packing and norms, are really what Joe Biden refuses to talk about when he refuses to say if he will expand the court. This is not an academic exercise or a matter of minor changes in ivory towers. These decisions would fundamentally alter the basic rights of American citizens in ways not seen in decades if not centuries. If as it seems likely now, this is what Joe Biden intends to do with his presidency, the American people need to know it and they need to know it now.