Not waiting for Joe Biden’s commission to start, Congressional Democrats previewed their own Supreme Court packing plan to selected media outlets on April 14. The legislation would add four justices to the United States Supreme Court, for a new total of 13. Reports state Senator Ed Markey of Massachusetts and House member and Judiciary Committee Chair Jerry Nadler plan to introduce the proposal publicly outside the Supreme Court building on April 15. The number of allotted justices on the Supreme Court started with six, through the Judiciary Act of 1789, and it has been at nine members since 1869.
Mr. Markey’s legislation reportedly contains nothing other than the addition of four Justices. Should the legislation pass, an extreme longshot in the closely divided Congress, the court’s political makeup will swing wildly. Currently, there are three Democratic Party appointees on the court and six Republican picks.
What About the Commission?
President Biden signed an executive order on April 8 establishing “the Presidential Commission on the Supreme Court of the United States.” Candidate Biden famously refused to disclose whether he supported court-packing during his campaign for president. Progressives have been clamoring for the addition of justices and aren’t settling for the White House effort. One of the driving forces behind the effort to pack the court is Demand Justice, a left-wing judicial advocacy group set up to challenge President Trump’s nominees. It is well-financed by Mr. George Soros.
Politico reports that the group’s executive director, Brian Fallon, said the bill represents a “new era where Democrats finally stop conceding the Supreme Court to Republicans.” He said progressives need “to build a grassroots movement that puts pressure on every Democrat in Congress to support this legislation because it is the only way to restore balance to the Court and protect our democracy.”
Liberals v Progressives
Liberals and progressives don’t see eye to eye on the issue. Liberal justice and Democrat appointee to the court Stephen Breyer said recently:
“I hope and expect that the court will retain its authority, but that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Article III of the constitution lays out the judiciary branch of our federal government and establishes the Supreme Court. However, it does not specify how many judges will be on that court, beyond the Chief Justice. That number is set by federal law, with a historical low of six justices, to a high of ten. Federal law establishes this number, so a simple majority in both houses of congress, plus the president’s signature, can change the size at any time. Well, they can add justices at any time. Because Justices are appointed for life, the court’s size can only be reduced through attrition.
Justice Breyer isn’t the only justice to oppose court-packing from the left. Liberal judicial icon Ruth Bader Ginsburg said before she died that “If anything would make the court look partisan, it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”
Read more from Scott D. Cosenza.