Democrats pushing again to pack the Supreme Court: In an idea that goes back to FDR, Democrats have been considering an expansion of the Supreme Court in recent years. There’s a new push in Congress to do so, although it doesn’t have a path to enactment in the current environment.
Time to Try and Pack the Supreme Court?
The idea of “packing” the Supreme Court — in which the president appoints multiple additional justices to the Supreme Court — was attempted by President Franklin Roosevelt in the late 1930s, after various attempts to do so during the 19th century. And the idea was revived during the 2020 presidential campaign after three appointments from President Donald Trump left the Court with a 6-3 conservative majority.
Once court packing was proposed, President Biden was noncommittal, even demurring when asked about it in a 2020 presidential debate. And once he became president with majorities in both houses of Congress, Biden did not pursue the idea of court-packing, only appointing one justice, Ketanji Brown Jackson, when a vacancy arose.
Biden, however, did sign an executive order in April of 2021 to create a “Presidential Commission on the Supreme Court of the United States.”
“The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals,” the order said. “The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
That December, the commission issued a final report, which listed the cases both for and against expanding the court.
Now, a new bill has been introduced that would again expand the court. It’s called the Judiciary Act of 2023, and is an updated version of legislation from a version of the previous Congress. The sponsors are a group of Democrats, including Senators Edward J. Markey (D-MA), Tina Smith (D-MN) and Elizabeth Warren (D-MA), and Representatives Jerrold Nadler (NY-12), Hank Johnson (GA-04), Cori Bush (MO-01), and Adam Schiff (CA-30).
The bill would add four seats to the Supreme Court, creating a court of 13. The reintroduction follows widespread outrage about the relationship between Justice Clarence Thomas and donor Harlan Crow.
“Republicans have hijacked the confirmation process and stolen the Supreme Court majority—all to appeal to far-right judicial activists who for years have wanted to wield the gavel to roll back fundamental rights,” Sen. Markey said in a press release. “Each scandal uncovered, each norm broken, each precedent-shattering ruling delivered is a reminder that we must restore justice and balance to the rogue, radical Supreme Court. It is time we expand the Court.”
Rep. Bush went on to slam the Supreme Court as “a cesspool of corruption devastating our communities.”
As the legislation did not pass in the previous Congress, when Democrats had majorities in both houses, it appears all but impossible to pass now that the Republicans control the House.
The constitution does not mandate that the Supreme Court have exactly nine members and gives Congress the right to determine the size of the court, although the court has had nine seats since 1869.
Back in January, Rep. Dusty Johnson (R-SD) introduced a constitutional amendment to “Keep the Nine,” and have that number of justices enshrined in the constitution.
“Recent years have brought more calls to pack the Court or expand the Court,” Rep. Johnson said in the January announcement. “This is a terrible idea. As defenders of the Constitution, the Supreme Court’s check on the Executive and Legislative branches is essential to keeping our government free and fair. Turning the Supreme Court into a political football will erode public trust in our institutions and nullify intentions set by our Founding Fathers. Capping the Supreme Court at nine Justices will protect the integrity of the Supreme Court.”
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Expertise and Experience
Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.
