Democrats roll out legislation to expand Supreme Court

Democrats rolled out new legislation to expand the Supreme Court Thursday in the midst of a partisan debate over the body. 

The legislation, introduced by Sen. Ed Markey (Mass.), House Judiciary Committee Chair Jerry Nadler (N.Y.) and Reps. Hank Johnson (Ga.) and Mondaire Jones (N.Y.) would enlarge the Supreme Court from nine seats to 13 seats, a move the lawmakers said would restore balance to a court that currently holds a 6-3 conservative majority.

“We are here today because the United States Supreme Court is broken, it is out of balance and it needs to be fixed. Too many Americans view our highest court in the land as a partisan, political institution, not our impartial judicial branch of government,” Markey said at a press conference.

The effort is the latest salvo in progressives’ effort to expand the Supreme Court amid liberal outrage over recent Republican appointments.

Democrats were infuriated when Senate Republicans denied then-President Obama the ability to fill a vacancy in early 2016 on the premise that a seat should not be filled in an election year. 

However, in October of 2020, Republicans replaced the late Justice Ruth Bader Ginsburg after former President Trump nominated now-Justice Amy Coney Barrett just before the election. They said that there was a difference between 2016 and 2020, because for Barrett’s nomination, both the White House and the Senate were controlled by the same party. 

“Some people will say we’re packing the court. We’re not packing it, we’re unpacking it. Senator McConnell and the Republicans packed the court over the past couple of years,” said Nadler, referencing now-Senate Minority Leader Mitch McConnell (R-Ky.).

“So this is a reaction to that. It’s a necessary step in the evolution of the court.”

The lawmakers Thursday cast the fight over Supreme Court expansion as a fight for the soul of the country, noting that the high court will hear arguments on issues ranging from voter rights to campaign finance.

The “far-right conservative majority will maintain minority rule for generations to come. That is, unless we stop them,” said Jones. “When those seats are filled, we will finally have a court committed to government by the people.”

The rollout comes days after President Biden signed an executive order forming a commission to study the possibility of adding seats to the court, among other reforms.

While Biden has been cool to the idea of expanding the court, the lawmakers said the formation of the commission showed the urgency surrounding the issue. However, they also noted that the commission is not tasked with making a formal recommendation and will not have any bearing on their legislative efforts.

“The damage has already been done. We don’t need a commission to tell us that we need to restore balance to the court in order to do any number of things,” said Jones. 

Nadler said he anticipates his committee would mark up the bill, though it faces an uphill climb in both chambers of Congress. 

Republican opposition to expanding the Supreme Court is most likely unanimous, meaning nearly all Democrats would have to stick together for House passage, while passage in the Senate would require the elimination of the 60-vote filibuster.

Democrats control the 50-50 Senate due only to Vice President Harris’s tie-breaking vote.

“We begin the case today, clearly we would want Republicans to vote with us,” said Markey. “But if they are not willing to participate in that effort, then we can still do this on a basis of 51 votes, and that will ultimately require a repeal of the filibuster and passage of this legislation with 51 votes.”

However, beyond GOP opposition, Democrats have also not fully embraced the expansion proposal.

Speaker Nancy Pelosi (D-Calif.) said Thursday that she has “no plans” to bring the bill to the floor, though maintained such an idea is “not out of the question.” 

“No,” she said Thursday when asked if she supported the bill. “I support the president’s commission to study such a proposal, but frankly I’m not — right now, we’re back, our members, our committees are working. We’re putting together the infrastructure bill and the rest.”

“I don’t know if that’s a good idea or a bad idea. I think it’s an idea that should be considered and I think the president’s taking the right approach to have a commission to study such a thing. It’s a big step.”

The lawmakers swatted away concerns over Pelosi’s comments, saying it would have been too early for a floor vote anyway.

“I would have been shocked if the Speaker had said that she would allow a floor vote on this today, and nor would I want that,” said Jones. “We haven’t been able to have conversations with all of our colleagues to get the support required to pass the bill. So I’m not concerned by what the Speaker said today.”