A group of house-of-representatives Thursday formally launched a legislative effort to pack the judiciary by adding four new justices, in a move that was hailed by progressive activists but quickly met with fierce GOP opposition and skepticism by Democratic leadership.
Sen. Ed Markey, D-Mass., along with House Judiciary Committee Chairman Jerrold Nadler, D-N.Y., and Judiciary Committee members Mondaire Jones, D-N.Y., and Hank Johnson, D-Ga., stood outside the Supreme Court Thursday to announce their new legislation to expand the high court from nine to 13 justices.
“We’re here today because the United States Supreme Court is broken,” Markey said, flanked by the Democratic lawmakers and activists. “It is out of balance. It needs to be fixed.
“Expanding the Supreme Court rights the wrongs the Republicans have done to this great court,” Markey added. “Expanding the Supreme Court is equal justice and will ensure equal justice is dispensed to all Americans.”
The Democrats said the far-right has hijacked the court thanks to “norm-breaking” moves by Senate Leader Mitch McConnell, R-Ky., and expanding the number of justices is necessary to restore balance and integrity to the highest court in America.
Nadler rejected the notion that Democrats were trying to pack the court with liberal justices and insisted it was Republicans who packed the court with maneuvers such as blocking the confirmation of Merrick Garland, former President Obama’s Supreme Court pick, and ramming through Amy Coney Barrett’s confirmation just before the presidential election.
“We’re not packing [the court],” Nadler said. “We’re unpacking it.”
The Judiciary Act of 2021 is just a two-page bill that would increase the number of justices on the court from 9 to 13, setting up an immediate opportunity for President Biden to nominate four new justices to be confirmed in the Democratic-led Senate.
The legislation has long-odds of passing Congress because unless Democrats abolish the filibuster, it would require 60 votes for passage in the Senate.
But Markey said it’s time to change the filibuster in order to pass the legislation with a simple majority.
“We must expand the court, and we must abolish the filibuster to do it,” Markey said.
Sen. Ed Markey, D-Mass., talks about his legislation to pack the Supreme Court on April 15, 2021.
Biden himself has been cool to court-packing and has only endorsed setting up a 36-member bipartisan commission to study court reforms. White House Press Secretary Jen Psaki said Thursday Biden is awaiting the recommendations from the newly formed court commission before taking a stance.
“He’s going to wait for that to play out and wait to read that report,” Psaki said.
FILE – In this March 21, 2021, file photo people view the Supreme Court building from behind security fencing on Capitol Hill in Washington after portions of an outer perimeter of fencing were removed overnight to allow public access. (AP Photo/Patrick Semansky, File)
Republicans immediately condemned the proposal as a delusional progressive attempt to nuke the Supreme Court.
McConnell, who conservatives credit for reforming the court by preventing a vote on Garland and then changing Senate voting thresholds to confirm three of President Trump’s nominees, immediately panned the court-packing proposal. He said the move is designed to “guarantee the rulings that liberals want” and would “destroy” the legitimacy of the court.
Progressives, however, said with Democrats in control of the House, Senate and White House now is the time to balance out the court, which currently has a 6-3 conservative majority.
Meagan Hatcher Mays, director of democracy policy at the liberal group Indivisible, said Republicans broke the trust that Americans have in the court.
She blamed McConnell for undoing Senate norms to ram through GOP-backed judges who are more loyal to “conservative political outcomes” than to the constitution. She said McConnell “bent over backwards” to confirm Justice Brett Kavanaugh, who is “hideously unqualified to serve on the bench.”
“We are here because Mitch McConnell overplayed his hand,” said Mays, a founder of the Unrig the Courts coalition. “He and Donald Trump got greedy and the American people noticed.”
The constitution doesn’t mandate the number of justices be set at nine. The number is set by Congress and it can be changed without a constitutional amendment.
The Supreme Court’s website notes the number of justices changed six times before settling at the current total of nine in 1869.
Democrats said the number of 13 is timely because it reflects how the number of appellate courts in America has grown from nine to 13 with time.
“Today begins a new era in terms of the Supreme Court,” Johnson said. “It’s been taken for granted for so long that the court has to be nine people … There simply is no need to continue with a nine- person court given the circumstances that have been expressed.”
Jones, a freshman lawmaker from New York’s Westchester County, said the Supreme Court’s decisions on campaign finance, gutting voting rights and partisan gerrymandering show the John Roberts-led court “is hostile to democracy itself.”
Jones said the Supreme Court has been “an accomplice” to voter suppression and creating a path for the “far-right to remain in power”. He said expanding the court is the remedy.
“Our democracy faces its greatest test since Jim Crow,” Jones said. “From the insurrection at the Capitol, to the racist voter suppression being attempted all throughout the United States of America, the far-right is at war with our democracy.”
Rep. Mondaire Jones, D-N.Y., speaks before the Supreme Court on April 15, 2021, on his legislation to expand the Supreme Court.
In addition to Biden, other Democrats are cool to the plan of court-packing. Sen. Dick Durbin, D-Ill., chair of the powerful Senate Judiciary Committee that has jurisdiction of the courts, said he’s not ready to endorse the bill.
“I just heard about it,” Durbin said. “I’m not ready to sign on yet. I think this commission of Biden’s is the right move. Let’s think this through carefully. This is historic.”
House Speaker Nancy Pelosi, D-Calif., said Thursday she also supports Biden’s commission to study reforms and doesn’t plan to advance the court-packing legislation to a full House vote.
“I have no plans to bring it to the floor,” Pelosi said.