Pence’s tactic here is familiar: tying the historically moderate Biden to the desires of the Democratic Party’s progressive wing. But the Biden campaign may not be able to easily wave it away. When Harris was vying for the Democratic presidential nomination, she said she was open to adding more justices to the Court; so did multiple other candidates competing in the primary. In the past, Biden has dismissed court packing, but he declined to answer whether he wants to expand the Supreme Court during the last debate. The Senate minority leader, Chuck Schumer, has said that court packing will be “on the table” if Barrett is confirmed, and other members of Congress have rallied behind the proposal. The pressure to take a position, not just from Republicans, but also from fellow Democrats, may only grow.
With Congress at a perpetual standstill, the Supreme Court has become the default venue where some of the most high-stakes American political questions get adjudicated. Republicans have shown that they are willing to do whatever it takes to maintain a conservative majority on the Court, including holding open Scalia’s seat for nine months before the election in 2016, and now attempting to confirm Barrett just a few days before the election in 2020. If Democrats want to take the radical step of court packing in pursuit of their revenge, a drawn-out, bloody battle surely lies ahead. November’s election is a referendum on the chaos of the last four years. But the election might not end the chaos—it might just bring a new era. Right now, it’s the president’s move on the Court, but Biden and Harris have to be ready for their turn.