Democrats Introduce Bill to Expand the Supreme Court by Four Justices, Tip Balance In Favor of Liberals

What’s the story?

• A group of congressional Democrats on Thursday announced that they’re introducing legislation to add four more justices to the Supreme Court in an effort to alter the balance of the nation’s highest court in favor of liberals.
• The bill’s lead Senate sponsor, Sen. Ed Markey (D-MA), said the Judiciary Act of 2021 is an effort to reverse the damage that he believes Republicans did to the legitimacy of the Supreme Court by adding four seats to the Court after eliminating the Senate filibuster:

“Just days before the 2020 presidential election, even while Americans were casting ballots, Leader McConnell and his Republican colleagues confirmed Amy Coney Barrett to the Court to fill the seat held by the late, great Justice Ruth Bader Ginsburg. So much for letting the people weigh in. As a result, we have a stilted, illegitimate, six-three conservative majority on the Court that has caused this crisis of confidence in our country. The Republicans stole two seats on the Supreme Court, and now it is up to us to repair that damage.”

• House Judiciary Committee Chairman Jerry Nadler (D-NY) is among the lead House sponsors of the bill, said in a press conference, “We aren’t packing the Court, we’re unpacking it.” He also said that he intends to hold a markup hearing on the bill to expand the Supreme Court but didn’t offer a timeline and said, “We’ll have to see where it fits on our schedule, but I anticipate it.” 
• House Speaker Nancy Pelosi (D-CA) was asked at her weekly press conference if she supports the bill and intends to bring it to the floor and responded:

“No. I support the president’s commission to study such a proposal… I don’t know that that’s a good idea or a bad idea. I think it’s an idea that should be considered, and I think the president is taking the right approach to have a commission to study such a thing. It’s a big step. It’s not out of the question, it has been done before in the history of our country a long time ago. And the growth of our country, the size of our country, the growth of our challenges in terms of the economy etcetera might necessitate such a thing. But to answer your question, I have no plans to bring it to the floor, no.”

• Biden’s position on expanding the Supreme Court has evolved over the course of his political career. While he was the top Democrat on the Senate Judiciary Committee, Biden said court-packing was a “bonehead idea” and “terrible, terrible mistake” that would undermine the Court’s integrity.
• After launching his presidential campaign in 2019, Biden said Democrats would “rue the day” they pursue court-packing. Over the course of his campaign, Biden began to dodge questions on the issue and tried to avoid answering the question prior to the election. Less than two weeks before the election, Biden relented and committed to forming a commission on the issue to placate Democrats who were calling for the Court to be expanded and packed with liberal justices who could overwhelm the Court’s current 6-3 conservative majority. Biden established the commission through executive order on April 9, 2021, which will release its findings this fall.
• Two of the most prominent Supreme Court justices in recent memory who are considered to be liberals in their jurisprudence have expressed opposition to expanding the Court beyond nine justices for the purpose of packing it with justices to suit the political desire of the party in power.
• Prior to her death, the late Justice Ruth Bader Ginsburg told NPR that “nine seems to be a good number” of justices and “it was a bad idea when President Franklin Roosevelt tried to pack the court.” Ginsburg added:

“If anything would make the Court look partisan, it would be that ― one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

• Last Tuesday, Justice Stephen Breyer spoke for two hours at Harvard Law School to warn against court packing efforts and said he hoped to “make those whose instincts may favor important structural change or other similar institutional change, such as forms of ‘court-packing,’ think long and hard before they embody those changes in law.” Breyer said:

“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a check on other branches… I hope and expect that the Court will retain its authority. But that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

• The size of the Court has ranged between five and 10 justices, and the number of justices changed six times before it settled at nine justices in 1869. During the Civil War, the Republican Congress expanded the Court to 10 to let Abraham Lincoln make more appointments, but after the war reduced it to eight to prevent Andrew Johnson from making appointments. The number of justices was then restored to nine justices in 1869 after Ulysses Grant took office. Since then, the most serious challenge to the nine-justice Supreme Court came from FDR’s court-packing plan in the late 1930s.
• While it’s unclear whether Democrats’ bill to add four more justices to the Supreme Court will get a vote in the House, it’s doubtful the bill could advance in the Senate because it would be subject to the legislative filibuster, which requires 60 votes to limit debate and allow a passage vote.

RELATED READING

• Biden to Sign Executive Order Forming Commission to Explore Expansion of the Supreme Court (4/9/21)
• What is ‘Court Packing’ and What Happened When FDR Tried to Expand the Supreme Court? (10/12/20)

— Eric Revell

(Photo Credit: Markey: Senate Democrats via Flickr / Creative Commons | Pelosi: U.S. Embassy Ghana via Flickr / Creative Commons | iStock.com / Stratol)