House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer have been mum on whether they are in favor of packing the Supreme Court should Democrats win the presidency and reclaim the majority in the Senate, as Democratic presidential nominee Joe Biden has refused to outright declare his stance on the issue. 

Neither a spokesman for Pelosi or Schumer responded to Fox News’ request for comment on the matter, but both have made past public statements suggesting that there was nothing congressional Democrats would rule out should they take the majority. 

“Everything is on the table,” Schumer, D-N.Y., said on MSNBC earlier this month when asked what actions Democrats could take if they reclaim the majority in the Senate on Nov. 3.

And Pelosi, D-Calif,, has suggested that Democrats need to think about both the “short term” and the “long term” with regards to political tactics related to the court — referring to the confirmation of President Trump’s Supreme Court nominee Amy Coney Barrett. 


The idea of “packing” the court with extra justices – attempted unsuccessfully by President Franklin Delano Roosevelt in 1937 to force through parts of his New Deal that were ruled unconstitutional by the high court – has bubbled away on the fringes of the party for years.

But the issue has come back to the forefront – specifically on the campaign trail – after the passing of late Supreme Court Justice Ruth Bader Ginsburg, and Trump's nomination of Barrett to that vacancy on the high court so close to a presidential election. 

The former vice president has been asked repeatedly about his stance on the issue — a question that, over the weekend, he answered by saying that voters don’t deserve to know where he stands. 

Biden, who had opposed court packing in the primary, refused to answer the question on Thursday, saying “you’ll know my position on court-packing the day after the election.”

On Friday, a KTNV reporter asked him again about whether he backs court-packing and said: "This is the number one thing that I've been asked about from viewers in the past couple of days.”

“You’ve been asked by the viewers who are probably Republicans who don't want me continuing to talk about what they’re doing to the court right now,” Biden responded.

“Well sir, don’t the voters deserve to know …?” reporter Ross DiMattei asked.

“No, they don’t," Biden replied. "I'm not gonna play his game, he’d love me to talk about, and I’ve already said something on court-packing. [Trump would] love that to be the discussion instead of what he’s doing now.” 

“He’s about to make a pick in the middle of an election, first time it’s ever been done, first time in history it’s ever been done,” he said.

During last week's vice presidential debate, Harris dodged the question when asked by Vice President Mike Pence, saying only that the “American people deserve to make the decision” of “who will serve for a lifetime.”


“Joe and I are very clear the American people are voting right now, and it should be their decision about who will serve on this most important body for a lifetime," she said.

The nomination of Barrett to fill the vacancy on the high court drew congressional Democrats — some in leadership positions and other rank-and-file lawmakers — to threaten to implement a strategy to pack the Supreme Court if they take control of the White House and the Senate after election day. 

“If Sen. McConnell and @SenateGOP were to force through a nominee during a lame duck session – before a new Senate and President can take office – then the incoming Senate should immediately move to expand the Supreme Court,” Rep. Jerry Nadler, the Democratic chair of the House Judiciary Committee, said last month. “Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials.”

Nadler added: “Congress would have to act and expanding the court would be the right place to start.”

And Rep. Joe Kennedy III, D-Mass., warned that if Senate Majority Leader Mitch McConnell, R-Ky., holds a vote in 2020 for a Trump nominee — which he has vowed to do —  Democrats will “pack the court in 2021.”

“It’s that simple,” Kennedy said.

Democrats have objected to a Barrett confirmation so close to the election, citing Senate Majority Leader Mitch McConnell’s refusal to consider President Barack Obama’s nomination of Merrick Garland in 2016.

McConnell, though, has said that it is a different situation as the White House and the Senate are not held by opposing parties.


Republicans appear to have the votes to move forward and confirm Barrett. Republicans have 53 votes in the Senate and can therefore afford three defections if no Democrat votes for the nominee. In that instance, Pence would be called in to break a tie.

Barrett’s confirmation hearing is set to begin on Oct. 12 before the Senate Judiciary Committee, which Harris sits on, and run through Oct. 15.

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