Massachusetts Senator Edward J. Markey on Thursday announced he is introducing a bill that would expand the number of justices on the Supreme Court, arguing that increasing its size would restore justice to a body that Republicans “broke” because of the way they confirmed two of former president Donald Trump’s nominees.
The measure would add four seats to the court, increasing the number of seats from nine to 13, and allow President Biden to nominate the justices to fill them. Its passage — which is unlikely in either the House or Senate — would mark the first change to the makeup of the court in about 150 years.
The Supreme Court is “broken” because Trump, Senator Mitch McConnell, and Senate Republicans “violated historic norms” surrounding court appointments, Markey said at a press conference outside the court on Thursday.
Markey cited McConnell’s refusal to allow a vote on former president Barack Obama’s Supreme Court nominee, Merrick Garland, who is now the attorney general, in order to hold the seat open for a new president nominate a justice, and and the confirmation of Amy Coney Barrett to fill Ruth Bader Ginsburg’s seat despite Ginsburg’s death taking place weeks before the 2020 presidential election. Barrett’s confirmation prevented the American people from having a say in the court’s ideological leaning by allowing Trump to fill Ginsburg’s seat instead of allowing the next president to nominate a new justice, Markey said.
“We have a stilted, illegitimate 6-3 conservative majority on the court that has caused this crisis of confidence in our country,” Markey said. “Republicans stole two seats on the Supreme Court, and now it is up to us to repair that damage. Our democracy is in jeopardy today, because the Supreme Court standing is sorely damaged.”
With four new justices nominated by Biden, the court would “reflect the values of the majority of the American people on whose behalf they serve,” Markey said.
Barrett’s confirmation last fall cemented the Supreme Court’s conservative majority, with six justices appointed by Republicans, and three by Democrats.
Markey was joined at the press conference by Representative Jerry Nadler, the chairman of the House Judiciary Committee, co-sponsors of the legislation Representatives Hank Johnson of Georgia and Mondaire Jones of New York, and activists from progressive organizations.
Thirteen justices “will enable us to do justice as to rectify the great injustice that was done in packing the court,” Nadler, who is also a co-sponsor of the bill, said at the press conference. He added that while the Constitution established the Supreme Court, Congress has the power to determine its size.
House Speaker Nancy Pelosi said Thursday she has “no plans” to bring the bill to the House floor. The legislation, which also has scant support in the Senate, is unlikely to pass even with Democratic control of both houses of Congress.
When asked about Pelosi’s opposition to the measure at the conference, Nadler said the speaker is a “very good judge of events and history,” and he believes as the Supreme Court continues to administer decisions Democrats find unfavorable, “Speaker Pelosi and others will come along.”
Republicans on Thursday largely dismissed the plan as “court-packing,” making reference to President Franklin Delano Roosevelt’s failed 1937 attempt to add more justices to the court following a series of decisions that struck down parts of Roosevelt’s New Deal.
“Time and time again, prominent Democrats show they’re no longer content to work within the ground rules and norms of our institutions, but prefer to threaten the institutions themselves,” Senate Minority Leader Mitch McConnell said in a statement on Thursday.
At the press briefing, Johnson tried to counter such claims, arguing there were a number of benefits to increasing the size of the court, including allowing the court to modernize as the rest of the federal government has throughout the course of history, and bringing the number of justices in line with the number of appellate courts that sit below the Supreme Court.
“With 13 justices, each justice would be able to have responsibility for emergency applications for a single circuit, instead of the current status quo where one justice covers three circuits, two justices covered two, and the remaining six justices cover one,” Johnson said.
He added that he hoped additional justices would allow the Supreme Court to hear more cases in a given term.
“It’s time that we start thinking about the Supreme Court like we think about the rest of the federal government and consider whether and how its current composition allows it to effectively do what we need it to do, which is to efficiently and effectively administer justice and uphold the rule of law,” Johnson said.
Jones described the Supreme Court as having a “far-right” majority “that is hostile to democracy itself.”
“We must act before it is too late by restoring balance to the Supreme Court,” he said. “Our democracy faces its greatest test since Jim Crow. From the insurrection at the Capitol to the racist voter suppression being attended all throughout the United States of America, the far right is at war with our democracy.”