Democrats in Congress Are Planning to Move Ahead on Expanding the Supreme Court

Democratic lawmakers in Congress are expected to announce legislation that would add four more seats to the United States Supreme Court.

The bill, sponsored by Sen. Ed Markey (D-Massachusetts) and Rep. Jerry Nadler (D-New York), who is chair of the House Judiciary Committee, and co-sponsored by Rep. Hank Johnson (D-Georgia) and Rep. Mondaire Jones (D-New York), will likely spark heated debate about the rightful size of the court, as well as other reforms some are pushing, including limits on how long sitting justices can serve.

The text of the bill itself is very short, and simply amends existing law to say that “a Chief Justice of the United States and twelve associate justices, any eight of whom shall constitute a quorum,” will be on the court.

The size of the Supreme Court has fluctuated, mostly during the first century of its existence (under President Abraham Lincoln, there were 10 justices on the court). Since 1869, however, there have been nine seats on the bench of the country’s highest court of appeal.

But the size of the court is up to Congress. Changes to its membership size can be altered by simply passing a new law, as the Constitution does not expressly state how large or small the Supreme Court should be.

Undoubtedly, Republicans will be against the effort to change the court, and will likely cry foul at the attempt to do so. If the bill being proposed by Democrats today were to pass into law, it would allow President Joe Biden to appoint four new liberal bloc members to the high court — changing a 6-3 balance favoring conservatives currently on the bench to a 7-6 balance favoring the liberals.

Yet the need to expand the court, progressives argue, has arisen out of the partisan shenanigans of Republicans themselves in recent years.

In early 2016, after conservative Justice Antonin Scalia passed away unexpectedly, former President Barack Obama sought to fill the seat with Merrick Garland who was then a judge on the D.C. circuit. But Republicans refused to hold hearings for the nominee, justifying their obstruction on the basis of it being a presidential election year and arguing that the next president should make that decision.

However, after liberal Justice Ruth Bader Ginsburg died in the middle of the presidential election season in 2020, the GOP changed its tune, hypocritically rushing the appointment of current Justice Amy Coney Barrett after former President Donald Trump nominated her. Barrett was confirmed just eight days before the election took place.

Possibly attempting to diminish the partisanship battles related to changes to the court, Biden announced earlier this week the formation of a 36-member commission to study the issue, and to report its findings back to him and the U.S. people within six months. Progressives, however, have pointed out that action is needed now.

“If you’re captain of a ship and you see an iceberg on the horizon, you don’t call for a 6 month study. You change course,” said Aaron Belkin, director of Take Back the Court, a group promoting the expansion of the Supreme Court. Belkin added that, while the commission had a “historic opportunity” to explain why changes are needed, the time to act was now.

“We don’t have time to waste,” Belkin said.

There’s a chance that voters would be receptive to adding more seats to the Supreme Court, too. In a poll from The Hill/Harris X that was conducted in late October 2020, the public was split on the issue, with 52 percent saying they’d like to see more seats added and 48 percent saying they opposed the idea.