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Bill to enlarge the Supreme Court faces dim prospects in Congress

Rep. Jerrold Nadler, surrounded by other lawmakers, speaking at lectern with Supreme Court in background.

Four congressional Democrats introduced legislation Thursday to expand the number of seats on the Supreme Court from nine to 13, but party leaders in both the House and Senate immediately threw cold water on the plan.

Expanding the size of the court – once a fringe idea – has become a rallying cry for many liberal Democrats who remain angry about how Republicans handled Supreme Court nominations in 2016 and 2020. Under Majority Leader Mitch McConnell, the Senate refused to give a confirmation hearing to Merrick Garland in the final year of the Obama presidency but, four years later, rushed to confirm Amy Coney Barrett weeks before the November election.

“We have a stilted, illegitimate, 6-3 conservative majority on the court,” Sen. Ed Markey of Massachusetts said at a press conference outside the Supreme Court to unveil the legislation. “Republicans stole two seats on the Supreme Court, and now it is up to us to repair the damage.”

But despite its support on the left, and despite the fact that Democrats now control both chambers, the bill has little chance of passage in the current political environment. President Joe Biden said as a candidate that he is “not a fan” of proposals to expand the court, and last week, he appointed a commission to study various types of court reform – a further indication that he has no interest in endorsing a sweeping plan to add seats in the short term. House Speaker Nancy Pelosi told reporters on Thursday that she does not intend to bring the court-expansion bill to the floor. And Sen. Dick Durbin, the Senate’s second-highest-ranking Democrat and the chair of the Senate Judiciary Committee, suggested that lawmakers should wait for Biden’s commission to issue a report, which is due within 180 days of its first meeting.

“I want to give the commission this time to do their due diligence and review the measures they recommend when it comes to important potential reforms of the court,” Durbin said through a spokesperson.

Republicans have condemned proposals to add seats to the court as politically motivated court-packing. The Judicial Crisis Network, a group that advocates for conservative judicial nominees, said Thursday it was launching a $1 million advertising campaign to oppose the bill.

Titled the Judiciary Act of 2021, the two-sentence bill would change the number of justices from nine to 13. In addition to Markey, the bill is sponsored by three House members: House Judiciary Committee Chair Jerrold Nadler of New York, Rep. Hank Johnson of Georgia, and Rep. Mondaire Jones of New York.

Congress has the power to determine the size of the Supreme Court, and it has changed the number of justices seven times in the nation’s history, from a low of five justices to as many as 10 justices at one point. But the size of the court has remained fixed at nine justices since the late 19th century.

Even the bill’s sponsors seemed to acknowledge its high political hurdles when speaking with reporters outside the court on Thursday. “I believe Speaker Pelosi and others will come along,” Nadler said. Markey added that, for the bill to have any chance of clearing the Senate, that body would first have to abolish the filibuster.

Jones urged members of Congress to act quickly on court reform rather than waiting for Biden’s commission to analyze the issue. He questioned the need for further study and noted that the commission, though charged with writing a report, has no mandate to issue formal suggestions.

“There is no instruction that it make recommendations, which I found to be interesting,” Jones said. “Additionally, the damage has already been done. We don’t need a commission to tell us that we need to restore balance to the court.”

Recommended Citation: James Romoser, Bill to enlarge the Supreme Court faces dim prospects in Congress, SCOTUSblog (Apr. 15, 2021, 5:47 PM),