• The size of the Supreme Court has varied from as few as five justices to 10
  • The court has been stable at nine justices since 1869
  • Franklin Roosevelt wanted to expand the court to 15 justices, but the idea was shot down by the Senate

With conservatives poised to cement a 6-3 majority on the U.S. Supreme Court, Democratic presidential candidate Joe Biden says he’s not in favor of expanding the number of justices on the court.

Progressives have suggested so-called court-packing to counter Republican efforts to squelch liberal causes, including abortion rights and gay marriage.

Biden’s comments came Monday in an interview on WKRC-TV, Cincinnati, during a campaign swing through Ohio, a key battleground state.

“I’m not a fan of court-packing,” Biden said during the interview without saying definitively he would not attempt to soften the conservative majority. Biden avoided answering the question during his debate with President Donald Trump and his running mate, Kamala Harris, also avoided the question during her face-off with Vice President Mike Pence – an evasion on which Pence pointedly commented.

“Court-packing is going on now,” Biden said, referring to the hearings to confirm Amy Coney Barrett to the Supreme Court to replace Justice Ruth Bader Ginsburg, who died Sept. 18. “Never before when an election has already begun and millions of votes already cast, has it ever been a Supreme Court nominee was put forward.”

Biden said the Constitution implies confirming a new justice this close to Election Day is wrong since voting is the only way the public can make its intentions known. Biden said voters should ask themselves why with just three weeks to go before the election Trump is pushing the nomination.

Trump has said he expects court challenges to the election results because of the expansion of mail-in voting. Democrats have urged a Justice Barrett to recuse herself from such litigation given the nomination process.

Over the years, the size of the Supreme Court has varied. Sens. Elizabeth Warren, Kirsten Gillibrand and Harris have expressed a willingness to expand the court, which currently has nine justices and has been accused of partisanship.

The Constitution is vague on the size of the court, which has changed seven times in U.S. history from as few as five to as many as 10. It has been stable at nine justices since 1869. In the late 1930s, President Franklin Roosevelt floated the idea of a 15-member court, but the Senate voted down the idea, 70-20.