After the Supreme Court delivered a unanimous ruling Monday to keep former President Donald Trump on presidential primary ballots amid dozens of challenges in states seeking his removal, some left-leaning groups renewed their long-standing calls to increase the number of justices on the bench.
All nine justices on the high court, which has a 6-3 Republican-appointed majority, ruled that states do not have a role in disqualifying federal officeholders and candidates. In their six-page ruling, the justices reversed the Colorado Supreme Court’s decision that Trump had engaged in insurrection and should therefore be barred from running for office under Section 3 of the 14th Amendment. However, the unanimity did not stop some activist organizations from decrying the Supreme Court’s opinion.
“Expand the Court,” left-wing judicial group Demand Justice posted to X, formerly known as Twitter, just hours after the Supreme Court’s decision in Anderson v. Trump. Although the organization didn’t explicitly tie its call to the decision, the online remark came as other left-leaning organizations, such as the Women’s March, posted similar calls to “EXPAND THE COURT” in response to the high court’s decision.
The notion of expanding the Supreme Court typically refers to far-left efforts to add more than nine justices to the bench, in this case in order to offset the 6-3 Republican-appointed majority fashioned under former President Donald Trump’s administration, during which Trump successfully appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett during his single term in office.
Demand Justice has long been a pro-court packing entity, which in 2021 took $4.5 million from the George Soros-backed Open Society Policy Center and spent seven figures on ads taking aim at then-nominee Barrett in 2020. It has also supported ending the filibuster and passing the Democratic-led Judiciary Act to add four more seats to the Supreme Court. The group recently came under scrutiny after 2022 tax forms showed an apparent “misuse of organization funds by its former finance director” totaling $291,609.
“Right on cue, left-wing dark money groups are calling for court packing when they get a decision they don’t like (including one that was unanimous on the judgement),” Carrie Severino, president of the conservative JCN, formerly known as Judicial Crisis Network, told the Washington Examiner.
“It’s telling that, to change this decision, they would have to add ten Justices, and it suggests they do not think that even Justices Sotomayor, Kagan, and Jackson are liberal enough for them. It shows how radical and out of touch these groups are and how reflexively partisan a judge would have to be to meet their standards,” Severino added.
Calls from groups like Demand Justice to add more members to the high court come as the group has in recent years engaged in pressure campaigns to force members, including retired Justice Stephen Breyer, to step down from the bench to pave the way for President Joe Biden to nominate a younger justice to the Supreme Court.
In the summer of 2021, Demand Justice launched a paid advertising campaign calling on then-Justice Stephen Breyer, who was 82 years old at the time, to step down. Sources close to Breyer denied that the pressure campaign was successful, including his brother, U.S. District Judge Charles Breyer, who said that the campaign came at a time when the justice “thought he should take into account the fact that this was an opportunity for a Democratic president — and he was appointed by a Democratic president — to fill his position with someone who is like-minded,” according to the Washington Post.
Breyer announced he would be retiring from the Supreme Court in early 2022, and Biden vowed to make his replacement someone similar to the inquisitive jurist. The president eventually landed on his selection of Justice Ketanji Brown Jackson, a 53-year-old who became the first black woman and first former public defender on the high court to join the bloc of two other Democratic-appointed members, Justices Elena Kagan and Sonia Sotomayor.
Left-leaning efforts to pack the Supreme Court have been largely unpopular policy proposals despite loud calls from activist organizations. As recently as October, Democratic lawmakers pivoted toward backing legislation that would require presidents to appoint a new Supreme Court justice every two years, with each justice staying on the bench for 18 years before stepping back to hearing a “small number of constitutionally required cases.”
But efforts to impose term limits have received scrutiny from Republican lawmakers who say such legislation would effectively target Republican-appointed Justice Clarence Thomas, who is the longest-serving member of the high court and would be the first to be affected. Such legislation would also likely fail in the Republican-controlled House of Representatives.
With just nine months until the next presidential election between the likely candidates, Trump and Biden, some legal scholars have speculated whether there might be any last-ditch efforts to convince either Kagan or Sotomayor to take an early retirement in order to give Biden another shot at naming a younger justice to the bench.
Josh Barro, a former Republican journalist who switched parties in 2016 to support Democrats, penned an op-ed on Monday that reignited questions over whether Sotomayor, who will turn 70 in June, should step down and allow Biden the opportunity to nominate someone who is closer to Jackson’s age. He noted that Gorsuch was 49, Kavanaugh was 53, and Barrett was 48 when Trump nominated them to the bench.
“Democrats talk a lot about the importance of the Court and the damage that has been done since the court has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren’t Democrats demanding Sotomayor’s retirement?” Barro asked in his Substack blog, Very Serious.
Barro’s concerns are largely predicated on the notion that if a Republican wins the Oval Office after the 2024 general election, it could lead to an “episode” similar to the one sparked by the late Justice Ruth Bader Ginsburg’s refusal to retire during the Obama administration when her sudden death in 2020 allowed Trump to replace her with Barrett in the weeks before the general election.
Last week, previously unreported records revealed that Sotomayor, who was diagnosed with Type 1 diabetes as a child, is the only sitting member of the high court who has requested rare medical assistance while traveling in recent years. In January 2018, paramedics were called to her house due to “symptoms of low blood sugar,” and she was accompanied by a medic during a trip to South Florida one month later. Marshals Service records further revealed that in 2021 and 2022, Sotomayor went on at least four trips where her baggage included “medical gear” or included a redacted description of “baggage/medical supplies.”
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Sotomayor has not indicated that she is seeking to retire, but she recently made novel comments describing her work as demanding and acknowledging she was “tired” despite a positive attitude toward continuing with her duties.
The Washington Examiner contacted Demand Justice regarding their past efforts to pressure Breyer to step down and whether they have considered making similar efforts about other current justices on the bench.
