Democratic lawmakers are preparing to unveil legislation Thursday to expand the Supreme Court from nine to 13 justices, an initiative progressive activists are pushing to drastically alter the makeup of the nation’s high court that would amount to essentially to a liberal legislative-leaning body.
The bill, first reported by The Intercept, is expected to be introduced in both the House and Senate on Thursday.
The Democratic bill is led by Sen. Ed Markey of Massachusetts and House Judiciary Committee chairman, Rep. Jerry Nadler of New York. It is co-sponsored by Reps. Hank Johnson of Georgia and Mondaire Jones of New York. The sponsors plan to announce the legislation during a press conference Thursday morning outside the steps of the Supreme Court. They will be joined by three progressive activist groups — Demand Justice, Take Back The Court, and Indivisible, all of who have increased the push in packing the court for months.
“Our democracy is under assault, and the Supreme Court has dealt the sharpest blows. To restore power to the people, we must #ExpandTheCourt,” Jones wrote on Twitter.
Markey told The Wall Street Journal that adding the four justices that would give President Biden the ability to create a 7-6 liberal majority “will shore up the public’s confidence in the court and its legitimacy in the public’s eyes.”
But the progressive Senator acknowledged the odds against this radical plan would make headway given Democrats’ slim majorities, which include scores of moderate Democrats who are not on board with the progressive idea.
“We have work to do to organize, mobilize, and spur Congress to take action to reform the court,” Markey said.
Republicans are strongly united in opposition to the progressive legislation, with many Democrats, including liberal-leaning scholars who are critical of the conservative majority on the Supreme Court, are also opposing the measure, saying that altering the court’s makeup based on ideological reasons would severely damage its reputation as an apolitical body.
Beyond expanding the court, progressive activists are also proposing a slew of other adjustments to the Supreme Court, including implementing 18-year term limits for justices, who after their time is up would then serve on lower federal courts.
“This bill marks a new era where Democrats finally stop conceding the Supreme Court to Republicans. Progressives understand we cannot afford to wait six months for an academic study to tell us what we already know: the Supreme Court is broken and in need of reform. Our task now is to build a grassroots movement that puts pressure on every Democrat in Congress to support this legislation because it is the only way to restore balance to the Court and protect our democracy,” Brian Fallon, head of the progressive group Demand Justice, said of the bill.
The move comes less than a week after Biden signed an executive order ordering the establishment of a 36-member commission consisting of liberals and conservatives legal scholars. The commission will be tasked with reporting back within 180 days its findings to Biden of possible changes to the Supreme Court’s membership, jurisdiction, and lifetime terms. The president appointed former Obama White House Counsel Bob Bauer and a top Biden campaign adviser along with Yale law professor Cristina Rodriguez, a former Justice Department official in the Office of Legal Counsel as co-chairs.
Progressives impatience with Biden’s cautious approach with his formation of the commission have clamored towards packing the court now with Democrats controlling the White House and both chambers of Congress. The new push is reflected by the strenuous opposition of the current court political direction given former President Trump was able to appoint three new conservative justices. The issue became front in center weeks during a contentious 2020 election following the death of Justice Ruth Bader Ginsburg last September. Trump nominated Judge Amy Coney Barrett in late September, infuriating liberals when Senate Republicans confirmed Barrett’s nominee a week before the election last year.
Biden as the Democratic candidate punted when questioned on giving a solid position regarding the court-packing issue, declaring that he would let voters know his true opinion after the election. Despite emphasizing that he is “not a fan” of packing the court, Biden said he would form a “bipartisan commission” tasked to provide recommendations to reform the “out of whack” Supreme Court.
Since the establishment of the high court in 1789, the Supreme Court started off with six seats. Congress had altered the size the number of justices on the court seven times over the 19th Century from a low of five to a high of 10 — in 1801, 1802, 1807, 1837, 1863, 1866, and 1869. Since the last fluctuated in 1869, the size of the Supreme Court was fixed at nine justices. Former President Franklin Roosevelt in 1937 attempted but failed to propose his court-packing plan in adding more justices to a conservative Supreme Court due to the majority had derailed many of his New Deal initiatives.
Sen. Marco Rubio (R-FL) reintroduced a constitutional amendment that would permanently limit the Supreme Court to nine justices, in an attempt to block Democrats’ threat of making one of the progressives’ fondest goals a reality.
“Packing the Supreme Court is a radical, left-wing idea that would further undermine America’s confidence in our institutions and our democracy,” Rubio said just a day after Biden was sworn into office. “As a candidate, President Joe Biden promised to unify America and even said he was ‘not a fan of packing the Supreme Court, a radical proposal he once referred to as a ‘bonehead idea’ when he served in the Senate. If he is sincere about healing our country and protecting our institutions, he will support this effort to protect the Supreme Court.”