A Democratic proposal to add four justices to the U.S. Supreme Court is one of several changes sought by liberal activists determined to rein in the high court’s conservative majority.
Democratic members of the House and Senate introduced legislation on Thursday that would raise the number of justices on the court from nine to 13 — a move that sparked immediate pushback from Republicans.
SUPREME COURT EXPANSION BILL A BUILDING BLOCK FOR FAR-LEFT AMID HESITANCY FROM TOP DEMOCRATS
Their bill came just days after President Joe Biden established a commission to study the question of adding more justices to the bench, among other reforms that progressives have floated to dilute the power of justices nominated by Republican presidents.
Here are some of the options liberals have put forward.
ADDING JUSTICES
The bill from Sen. Ed Markey, a Massachusetts Democrat, New York Reps. Mondaire Jones and Jerry Nadler, and Georgia Rep. Hank Johnson would pad the Supreme Court with four extra justices to, in the words of its sponsors, correct an imbalance that Republicans initiated by denying former President Barack Obama an appointment before the 2016 election.
After Justice Antonin Scalia died in February of that presidential election year, Obama nominated Merrick Garland to fill the seat. But then-Senate Majority Leader Mitch McConnell declined to allow a vote on Garland’s confirmation due to the impending election, and former President Donald Trump ultimately filled the seat with Justice Neil Gorsuch.
When Justice Ruth Bader Ginsburg died before the 2020 election, however, McConnell shepherded Justice Amy Coney Barrett to the high court with a swift vote that Democrats have decried as an act of hypocrisy.
“The Republicans stole two seats on the Supreme Court, and now it is up to us to repair that damage,” Markey said Thursday at a press conference unveiling the legislation. “Our democracy is in jeopardy today because the Supreme Court’s standing is sorely damaged.”
Carrie Severino, president of the right-leaning Judicial Crisis Network, argued Democrats are attempting to conflate the maneuvering Republicans did within the existing Supreme Court structure with overhauling the makeup of the institution altogether.
“What we’re talking about here are proposals that are designed to preference one party over the other,” Severino told the Washington Examiner. “They are interested in trying to gain an advantage.”
If passed, the Democratic bill would tip the ideological balance of the high court toward the left by one justice, creating a 7-6 liberal majority.
The legislation is unlikely to move anytime soon, however.
Citing Biden’s commission, House Speaker Nancy Pelosi said Thursday that she wouldn’t bring the bill to the floor until the group publishes its findings. And the controversial proposal would likely hit a roadblock in the evenly divided Senate, where it would be subject to the filibuster.
IMPOSING TERM LIMITS
Biden’s commission will also examine “the length of service and turnover of justices on the Court,” according to the executive action the president signed last week.
Justices serve lifetime terms under Article 3 of the Constitution, so some experts argue any limits on how long justices can sit on the bench would require a constitutional amendment. Lifetime terms were intended to insulate justices from political pressure, according to the court.
But other experts have suggested alternative ways to impose term limits. One is to pressure Supreme Court nominees to pledge to retire after a certain point voluntarily and set that pledge as a norm.
Another is to set 18-year limits on Supreme Court service and then allow justices to continue receiving a paycheck and serve elsewhere as federal judges, thereby complying with the constitutional requirements. The vacancies would be staggered every two years, ensuring each president gets to nominate two justices.
Setting term limits for justices is a less divisive avenue for reform; proponents contend it would reduce the random nature of nominations.
JURISDICTION STRIPPING
Some liberals have suggested barring the Supreme Court from reviewing certain kinds of cases — essentially stripping it of jurisdiction over politically charged issues.
Progressives claim this type of reform would reduce the power of the Supreme Court to set law or undermine ambitious programs passed by Congress. Experts say Congress could include in laws likely to trigger court challenges language specifically designed to protect them from judicial reversal.
However, some experts also note that jurisdiction-stripping efforts could be, ironically, subject to a challenge from the Supreme Court.
‘RETIRE BREYER’
Demand Justice, a progressive activist group focused on the judiciary, launched a campaign last week to pressure Justice Stephen Breyer, who was nominated to the court in 1994 by former President Bill Clinton, to retire during Biden’s term in order to ensure a Democratic president can fill the vacancy.
Breyer, 82, last week spoke out publicly against partisan attempts to remake the bench, however, arguing in a speech at Harvard Law School that doing so could undermine public confidence in the independence of the high court.
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And Breyer’s retirement wouldn’t fix the problem Democrats are aiming to remedy with their proposals of reform. Conservatives would still maintain a 6-3 majority if Biden successfully nominated a new justice.
What’s more, the 50-50 split of the Senate would make it difficult for Biden to nominate the type of far-left justice that liberals have pushed to see.
