Democrats’ Supreme Court Expansion Plan Draws Resistance
Lawmakers and activists say more justices are needed to rebalance the court, but a top Democrat said any action would have to await the work of a new presidential commission.,
WASHINGTON — A group of House and Senate Democrats on Thursday introduced legislation to expand the Supreme Court to 13 members from nine, working to build momentum for rebalancing the court after an aggressive Republican drive to move it to the right.
The bill, which would change the makeup of the court for the first time in 150 years, is unlikely to move forward even with Democrats in control of Congress — at least not before a new commission named last week by President Biden completes a study exploring the subject. But its introduction opened a new front in the escalating partisan war over the judiciary, drawing outrage from Republicans, who called it a power grab.
Democrats, who announced their plan on the steps of the Supreme Court, said the change was necessary to restore equilibrium on its bench after Senate Republicans blocked President Barack Obama’s nominee in 2016 and pushed through three of President Donald J. Trump’s conservative appointees, including one — Justice Amy Coney Barrett — just days before the election last year.
“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Senator Edward J. Markey, Democrat of Massachusetts and a sponsor of the legislation, said in a statement announcing it. “Senate Republicans have politicized the Supreme Court, undermined its legitimacy and threatened the rights of millions of Americans, especially people of color, women and our immigrant communities.”
But the legislation has dim prospects in Congress, at least in the short term. With the filibuster in place, it stands no chance in the Senate, where it is hotly opposed by Republicans who say that Democrats are trying to “pack” the court to gain partisan advantage. Speaker Nancy Pelosi said she had “no plans to bring it to the floor,” though she did not dismiss the possibility of expanding the court at some point.
Ms. Pelosi said she preferred the approach taken by Mr. Biden, who ordered the new commission to study the issue and report within six months on potential changes to the court.
“The president’s taking the right approach to have a commission to study such a thing,” Ms. Pelosi told reporters. “It’s a big step. It’s not out of the question. It has been done before.”
Jen Psaki, the White House press secretary, said that the president had not taken a position on the idea of enlarging the court and that he wanted to hear from the commission before reaching a conclusion.
Mr. Biden has been dismissive in the past about calls to expand the court. But it became a major issue in the Democratic presidential primaries, and his promise to create a group to explore the idea was his way of avoiding taking a definitive stance. The commission is not expected to deliver a recommendation on what to do but will instead gather information on the implications of enlarging the court or imposing term limits on justices, who currently serve for life.
Champions of the bill hope to use it to generate more support for an eventual overhaul.
Representative Jerrold Nadler, Democrat of New York and the chairman of the Judiciary Committee, said it made sense to enlarge the court given its complex workload and the growth of the federal court system since the makeup of the Supreme Court last changed in 1869. Its size is set by law, not the Constitution, and it was changed multiple times in the early days of the nation.
“Nine justices may have made sense in the 19th century, when there were only nine circuits, and many of our most important federal laws — covering everything from civil rights to antitrust, the internet, financial regulation, health care, immigration and white-collar crime — simply did not exist, and did not require adjudication by the Supreme Court,” said Mr. Nadler, another sponsor of the bill. “But the logic behind having only nine justices is much weaker today, when there are 13 circuits.”
Republicans immediately assailed the idea, with Senator Mitch McConnell of Kentucky, the minority leader, calling it an “insane” bill and noting that even liberal members of the court have opposed the idea.
“The public, by the way, agrees,” he said on the Senate floor. “They see through this discredited concept.”
Senator Lindsey Graham, Republican of South Carolina and a senior member of the Judiciary Committee, called it a “terrible idea.”
“If successful, this would inevitably lead to changing the number of Supreme Court justices every time there is a shift in power,” he said.
Republican political operatives quickly criticized the proposal to expand the court, which also surfaced in 2020 Senate races, signaling that the party would try to use the issue to portray Democrats as radical even if the legislation fails.
“The Democrats’ latest power grab to pack the Supreme Court is about one thing: cementing liberal dominance for decades to come,” Jane Timken, a Republican candidate for an open Senate seat in Ohio, said in a statement.
Republicans are pushing back on the idea in other ways. A group of House Republicans has proposed a constitutional amendment fixing the membership of the court at nine justices. And the Judicial Crisis Network, a conservative advocacy group, started on Thursday what it said would be a $1 million advertising campaign criticizing Mr. Biden for exploring a change in the makeup of the court after resisting the idea for years.
But progressive activists say they intend to press the legislation despite resistance from both parties.
“We know this isn’t going to be an easy fight and that there’s work to do,” said Christopher Kang, the chief counsel for the advocacy group Demand Justice. “We’re prepared to go neighbor to neighbor, friend to friend, member to member, senator to senator, until we gain a majority of support in both the House and the Senate to pass this legislation.”