Democrats to Introduce Bill to Expand the Supreme Court

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Senator Ed Markey (D., Mass.) departs during the second impeachment trial of former President Donald Trump on Capitol Hill in Washington, D.C., February 10, 2021. (Al Drago/Reuters)

Democrats are set to unveil legislation on Thursday to expand the Supreme Court from nine justices to 13, the culmination of months of pressure from left-wing members of the party to do so after Republicans moved to quickly confirm Justice Amy Coney Barrett just weeks before the election last fall.

Senator Ed Markey (D., Mass.) will sponsor the bill in the Senate, while Representatives Jerry Nadler (D., N.Y.), Mondaire Jones (D., N.Y.) and Hank Johnson (D., Ga.) will serve as its advocates in the House, according to The Intercept.

The addition of four judges would give Democrats the ability to supersede the court’s current 6-3 conservative majority on the court. While the high court has had nine justices since the 19th century, the number of justices is not specified in the Constitution.

In the fall, progressives thrust court-packing to the forefront of political debate with calls to add more justices after Republicans moved forward with Barrett’s confirmation hearings just weeks before the November 3 election, creating a conservative majority on the court.

Democrats argued that the move was hypocritical after Republicans had refused to hold a confirmation hearing for former President Obama’s nominee Merrick Garland in 2016. GOP leaders argued then that it would not be in the interest of Americans to appoint a justice in an election year.

Republicans were quick to criticize the new proposal, with Representative Jim Jordan (R., Ohio) asking on Twitter, “Does expanding the Supreme Court count as infrastructure too?”

Jones responded, “Yes,” with a heart emoji. 

“Imagine if we reduced the number from nine to five and just kept the Republicans. You guys would go crazy,” Jordan added, according to the Washington Times.

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The proposal comes nearly one week after President Biden issued an executive order forming a bipartisan commission that will perform a 180-day study of potential changes to the Supreme Court, including court packing and setting term limits for justices.

After repeatedly dodging questions regarding his stance on expanding the Supreme Court during the campaign, Biden promised to form the bipartisan commission in October.

He said that he would clarify his stance on court-packing ahead of the election, contingent upon how Republicans “handle” Barrett’s confirmation process, though he never did.

In an interview with 60 Minutes in October, Biden instead suggested he would “put together a national commission of .. scholars, constitutional scholars, Democrats, Republicans, liberal conservative.” 

“And I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system because it’s getting out of whack, the way in which it’s being handled and it’s not about court-packing,” he said then.

The 36-member panel will be led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under the Obama administration.

However, as the commission is not set to issue specific guidance at the conclusion of its study, it remains to be seen if the panel will ultimately clarify Biden’s stance on the issue.

Markey argued recently that “we need more than a commission to restore integrity to the court,” according to the Wall Street Journal.

Meanwhile, Justice Stephen Breyer cautioned last week that court packing for political gain could undermine public trust in the court and its decisions.

“I hope and expect that the court will retain its authority,” Breyer said. “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.”

However, the Massachusetts Democrat disagreed, claiming that creating a 7-6 liberal majority “will shore up the public’s confidence in the court and its legitimacy in the public’s eyes,” according to the Journal.

It is unlikely the bill will receive enough support to move forward, as Republicans remain vehemently opposed to expanding the court and even a number of Democrats would be reluctant to support the legislation while Biden’s commission is underway.

“We have work to do to organize, mobilize, and spur Congress to take action to reform the court,” Markey acknowledged.

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