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Senate Democrats unveiled a new bill that would pack the Supreme Court by adding four new seats beyond the current nine seats, a move that could lead to the loss of the court’s current conservative majority.
The legislation comes after President Joe Biden’s commission on Supreme Court reform failed in December 2021 to recommend expanding the size of the nation’s highest court. Public approval of the court has fallen in recent years, according to polls. The late Democratic President Franklin Roosevelt tried to pack the court in the 1930s after it kept striking down his New Deal policies but the plan ultimately went nowhere after the public and lawmakers from his own party turned against it.
Sen. Ed Markey (D-Mass.) unveiled his new legislation, the proposed Judiciary Act of 2023 (pdf), at a press conference on the steps of the Supreme Court on May 16.
“Our most fundamentally held freedoms are under attack from an illegitimate, far-right United States Supreme Court,” Markey said.
“And if we fail to act, it will only get worse. We must fix this broken and illegitimate court. We must expand the United States Supreme Court.”
The court-packing proposed by Democrats is justified because Senate Republicans repeatedly “broke the rules” about the confirmation of Supreme Court nominees in recent years, Markey claimed.
After conservative Supreme Court Justice Antonin Scalia died in February 2016, Senate Republicans refused to allow a vote on then-President Barack Obama’s nominee, Merrick Garland, who is now President Biden’s attorney general.
Republicans denied Garland “a hearing and a vote that he was entitled to,” Markey said, even though there is no constitutional provision, law, or Senate rule that required the Senate to vote on the nomination.
“They claimed that they couldn’t fill a seat in a presidential election year, even with the election nine months away, and they kept that seat vacant for 422 days,” the senator said, adding that Obama’s successor, then-President Donald Trump, nominated Justice Neil Gorsuch to the court days after his inauguration.
“Then, in October of 2020, with head-spinning hypocrisy, Senate Republicans and Donald Trump stole the late Justice Ruth Bader Ginsburg’s seat, forcing Amy Coney Barrett onto the bench literally as Americans were casting their votes in the presidential elections nine days before Election Day in 2020.”
“So much for not confirming justices in a presidential year. So we now have two justices on the bench who frankly have no right to be there,” Markey said.
Americans have suffered since Republicans “hijacked the court,” handing it over to “partisan justices eager to toss aside decades of precedent to satisfy their deep-pocketed right-wing special interest benefactors.”
Markey said he feared that decisions last year reversing Roe v. Wade, recognizing a constitutional right to carry firearms in public for self-defense, and curbing the government’s environmental regulatory powers “are just a preview of coming atrocities.”
Democrats also need to pack the court because Justice Clarence Thomas had made “a mockery of the public trust” by refusing “to recuse himself on cases about efforts to overturn the 2020 presidential election in spite of the fact that his wife was implicated in them,” Markey said.
Legal experts say Justice Thomas did not have to recuse himself from such cases merely because his wife, Ginni Thomas, is a conservative activist and Trump supporter.
“We have to remind him that we have a system of constitutional checks and balances,” the senator said.
Markey, along with Sen. Richard Blumenthal (D-Conn.), and a handful of House members have called on Justice Thomas to resign, a demand that Markey repeated at the media event.
Democrats also claim Thomas is guilty of improprieties because, among other things, he has accepted vacations from a wealthy GOP donor, his longtime friend Harlan Crow, a Texas billionaire. When left-wing media outlet ProPublica recently reported on the existence of the trips, Thomas said he was previously advised he didn’t have to disclose the vacations but vowed to do so going forward. Legal experts say there is no conflict of interest because Crow has not had any business before the Supreme Court and because it is not illegal for justices to have wealthy, generous friends.
Markey continued: “The court has put all these rights of all Americans but especially those of people of color, women, immigrants, and LGBTQ rural and low-income communities at risk … [and] it’s only a question of when and who the court is going to target next—that’s because the extremist right wing will not stop.”
“But we will not stop either. So let’s start with undoing the Republicans’ thievery and adding four seats to the court,” he said.
Rep. Hank Johnson (D-Ga.), ranking member of the House Judiciary Committee’s panel on the courts, intellectual property, and the internet, said the Supreme Court’s right-leaning majority “threatens our rights, our democracy, and our planet.”
Last year the court “stripped millions of women of their right to an abortion … and they’re just getting started,” Johnson said.
Congress “has changed the number of justices seven times throughout American history,” and it should do so again, he said, noting he has introduced a companion bill in the House.
“The court has descended into extremist politics, and we need to save this arrogant court from itself. It has become too partisan, so that it no longer reflects the country as a whole.”
The court “repeatedly ruled against efforts to make it easier to vote during the pandemic” and by “repeatedly gutting voting rights, the court is reducing the role of average voters in our elections,” Johnson said.
The court is “also trying to whitewash history by undoing the civil rights legacy and by continuing to rule as if racism does not exist.”
The court is “poised to make millions of Americans’ lives dramatically worse, erasing workers’ rights, repudiating reproductive justice, entrenching white supremacy, denying LGBTQ rights, and preventing us from confronting the climate catastrophe,” the congressman said.
Sen. Tina Smith (D-Minn.) said at the presser that “the Supreme Court has become too powerful and too political doing the work of extreme right-wing conservatives.”
Rep. Adam Schiff (D-Calif.) also railed against the Supreme Court, saying it is “in desperate need of reform.”
“This is not a conservative court. Not in a legal sense. A conservative court would have some respect for precedent. This is instead a political and partisan court with a reactionary social agenda.”
“Now we must unpack and unstack the Supreme Court because Americans have begun to see the reactionary and partisan agenda pushed by it—slashed reproductive health care, with the rights to marriage equality and contraceptives potentially up next [and] the gutting of clean air and water regulations,” Schiff said.
Jacqueline Ayers, senior vice president of policy, organizing, and campaigns at Planned Parenthood Federation of America, said at the presser that her group supports expanding the court.
