Top Democrats had immediate, lukewarm reactions to a bill that proposed expanding the number of seats on the Supreme Court from nine to 13 members, seemingly putting the legislation on hold.
But the bill’s Democratic sponsors indicated that the purpose of the legislation is primarily to be a building block and tool to garner more support for packing the court with more members who are ideologically friendly.
Massachusetts Sen. Ed Markey and House Judiciary Chairman Jerry Nadler, along with Reps. Hank Johnson of Georgia and Mondaire Jones of New York introduced the Judiciary Act of 2021 on Thursday.
Minutes before the lawmakers introducing the legislation began a press conference about the bill, House Speaker Nancy Pelosi threw cold water on the effort: “I have no plans to bring it to the floor,” she said, redirecting attention to President Joe Biden’s 36-person commission, which is set to spend 180 days studying whether and how to alter the Supreme Court, including expanding the number of justices.
DEMOCRATS READY LEGISLATION TO ADD FOUR SEATS TO SUPREME COURT
The White House also distanced itself from the bill, with press secretary Jen Psaki saying President Joe Biden “may or may not support it.”
But the bill sponsors were not deterred.
“All issues go through three phases — political education, political activation, [and] political implementation. So we began the education of the American people,” Markey said in a press conference.
“This bill serves as a marker for us to proceed to build support for Supreme Court reform,” Johnson told reporters.
Nadler said that he anticipates bringing the bill up for markup in the House Judiciary Committee, which would give the issue more prominence and could force fellow Democrats on the committee to take a stance on the idea of court expansion.
The one-paragraph bill simply increases the number of justices from nine to 13, noting that eight justices constitutes a quorum. It does not spell out a timeline for filling the seats, but Markey said that the plan would be for Biden to fill the seats — giving liberal justices a majority that would “reconstitute the Supreme Court.”
But the group of Democrats has a long way to go.
Asked Wednesday how much support there currently is for the bill, Nadler said that he could not answer. “This is the very beginning of discussion of that issue,” he said.
In an acknowledgment that no Republicans are likely to support the bill — Republican Sen. Ben Sasse of Nebraska said in a statement that “the progressive activists who wrote this bill are high on their own supply” — Markey called for abolishing the Senate filibuster, which, with the current partisan breakdown, effectively requires at least 10 Republicans to join with Democrats to meet the 60-vote threshold to overcome a senator blocking a bill from passage.
Even without the filibuster, though, the bill would be unlikely to pass in the 50-50 divided Senate because Democrats are not fully on board with the idea.
West Virginia Sen. Joe Manchin, one of the most centrist Democrats in the caucus, reiterated to reporters on Thursday that he has not been in favor of expanding the court. And Illinois Sen. Dick Durbin, the Democratic chairman of the Senate Judiciary Committee, told reporters on Thursday: “I’m not ready to sign on yet.”
“I don’t know whether they can succeed or not. I think that there would be a lot of Democrats that are pretty upset with the idea of packing the Supreme Court,” Colorado Rep. Ken Buck, a Republican on the House Judiciary Committee, told the Washington Examiner. But the threat posed by the legislation is still there: “Even talking about it, it’s just irresponsible.”
Another reason for Democrats to support the bill, despite low chances of passage, could be to fend off primary challenges from the Left, Buck noted.
Pelosi and Durbin, notably did not rule out court expansion altogether, indicating that there is room for members within the caucus to support the proposal and build mainstream, visible support for court expansion.
“I don’t know that that’s a good idea or a bad idea. I think that it’s an idea that should be considered,” Pelosi said. “It’s not out of the question. It has been done before in the history of our country, a long time ago.”
“Let the conversation start,” Durbin said about the bill. “The ultimate goal here is to make the historically proper choice for the administration of justice in the long term.”
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Activist and political science professor Aaron Belkin, founder of the pro-court expansion group Take Back the Court, reminded skeptics how quickly policy can change.
“When I got into the fight against Don’t Ask Don’t Tell, people said that was unwinnable. Seven years ago, when I launched the campaign to repeal the transgender military ban, people said that fight was unwinnable,” Belkin said in the press conference. “We are going to win the fight to re-balance the Supreme Court because we have to. Progressive fights are always hard.”
