A Baker’s Dozen: Dems Unveil Plan for 13 Seats on Supreme Court

The call to expand the Supreme Court from nine to 13 justices is gaining momentum, but Republicans are not the only ones skeptical.

The seat of the late Justice Ruth Bader Ginsburg at the U.S. Supreme Court is seen Sept. 21, 2020, draped in black wool crepe to mark her passing. The tradition of draping the doors to the court and the bench chair of its late judges dates back at least as far as the death of Chief Justice Salmon P. Chase in 1873. Outside, the flags on the court’s front plaza will be flown at half-staff for 30 days.(Photograph by Fred Schilling, Collection of the Supreme Court of the United States, via Courthouse News)

WASHINGTON (CN) — Several Democrats unveiled congressional legislation on Thursday to expand the Supreme Court from nine to 13 justices, in a controversial yet expected move that will only intensify the current partisan battle over court reform. 

“We are here today because the Supreme Court is broken,” Senator Ed Markey of Massachusetts said on the steps of the Supreme Court this morning. “It’s out of balance. Too many Americans view the highest court in the land as a partisan, political institution, not our impartial judicial branch of government.”

Markey and Representative Jerry Nadler from New York, the bill’s lead sponsors, were joined on the steps of the Supreme Court by co-sponsors Representative Hank Johnson of Georgia and Representative Mondair Jones of New York to introduce the the Judiciary Act of 2021. 

“Leader Mitch McConnell, his Senate Republican colleagues and Donald Trump broke it,” Markey continued. “They violated historic norms governing Supreme Court appointment; they created precedent that the Senate would not confirm a justice to the Supreme Court during a presidential year.” 

Democrats were frustrated when Republicans refused in March 2016 to even consider Merrick Garland, Obama’s pick for the bench, and then confirmed Amy Coney Barrett, Trump’s nominee, four years later to fill the late Justice Ruth Bader Ginsberg’s seat just days before the election. 

“So much for letting the people weigh in,” Markey said. Activists say that the court, which is majority male and white, looks nothing like the American people. 

Under Trump, Senate Republicans confirmed three conservative justices to the high court, creating a 6-3 conservative majority. Now, progressive activists claim that “court packing” will restore balance to the court. 

But the bill is unlikely to make much headway in Congress, where all Republicans and many moderate Democrats oppose court expansion. 

President Joe Biden has also said that he is “not a fan” of the idea, and instead called for the creation of a 36-member bipartisan commission to study Supreme Court reforms and produce a report within six months. 

Even House Speaker Nancy Pelosi said that she has “no plans” to bring it to the House floor for a vote. 

“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,” Pelosi told reporters on Thursday.

Opponents of court packing say that it would undermine judicial independence and destroy the credibility of the institution. 

Last week at an address at Harvard Law School, Supreme Court Justice Stephen Breyer warned Americans to “think long and hard” about structurally changing the high court. 

“Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” said Breyer, who has served on the court since 1994. 

The idea is not new: the number of Supreme Court justices has fluctuated between five and 10 throughout the intuition’s existence. 

“The constitution leaves the number of justices up to Congress. And Congress has changed that number seven times in the history of the country,” Nadler said at the news conference introducing the bill. “Our founders understood that as our country and judicial system evolve, the court needs to evolve with it.”

Nadler claimed that nine justices made sense in the 19th century when there were only nine circuits and only a few hundred appeals were filed before the court every year. Now, there are 13 circuit courts, thousands of cases appealed to the high court each year, and many more statutes and regulations. 

“Getting a case in front of the Supreme Court starts to resemble winning the lottery for anyone without connections,” Johnson said, as the overwhelming majority of cases don’t get considered by the Supreme Court. 

Johnson called it a “historical oddity” that the court hasn’t expanded but the rest of the federal government has. 

“Some may say that we’re packing the court. We’re not packing the court, we’re unpacking it,” Nader said. “Senator McConnell and the Republicans packed the court for years.”

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