That prompted calls from the Democrats’ far-Left wing to “pack” the nation’s highest court with progressive and liberal justices, as Trump and the GOP tilted the bench’s ideology to have a 6-3 conservative majority after pushing Amy Coney Barrett’s appointment just days before the 2020 presidential election.
The idea of expanding the Supreme Court’s bench became a hot-button issue on the campaign trail last year, with Democratic candidates like Kamala Harris, now vice president, and Pete Buttigieg, now transportation secretary, signaling openness to increasing the number of justices in the court.
Now, a handful of progressive Democrats have resurfaced the idea, with party members from both congressional chambers standing behind legislation that would add four seats to the court. “Our democracy is under assault, and the Supreme Court has dealt the sharpest blows.,” Rep. Mondaire Jones (D-N.Y.), one of the co-sponsors of the bill that’s expected to be introduced Thursday, tweeted. “To restore power to the people, we must #ExpandTheCourt.”
President Joe Biden, however, has previously said that he’s “not a fan” of packing the court, but he never ruled it out on his campaign trail for the White House.
And more recently, Biden issued an executive order last week establishing a commission to study the status of the Supreme Court, examining whether the bench should be expanded and whether justices should have term limits. The commission is composed of “constitutional scholars, retired members of the federal judiciary” and those with “knowledge of the federal judiciary and the Supreme Court.”
“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 practice,” the White House said in a statement Friday.
The commission will include thirty-six legal scholars, like former federal judges and practicing lawyers, though the group has a leftward edge. But, there are some conservative scholars on the commission from organizations like the Federalist Society and the American Enterprise Institute.
While the commission appears to be studying fairly progressive proposals, it’s highly unlikely that enough Democrats on Capitol Hill would support drastically expanding the Supreme Court.
“The chances of the court packing bill being passed in this session are higher than President Biden nominating me to the Supreme Court, but not by much. This is a bill that is primarily designed to demonstrate to voters back home in very progressive districts that their representatives are very progressive,” Mark A. Graber, a Regents Professor at the University of Maryland School of Law, said.
Ken Kollman, a political science professor at the University of Michigan, noted, “Expanding the court is a real long shot plan. Unless the Supreme Court makes some new, very unpopular decisions, I don’t see moderate Democrats fully signing onto such a plan. I also see it as a very risky move electorally for the Democrats preceding the 2022 elections.”
The Constitution does not indicate the number of justices that must sit on the Supreme Court at any time, which gives Congress the power to swell the bench through legislation. But the total number of Justices hasn’t been changed in over 150 years.
And the president does not have the executive authority to “pack” the court, though he or she does hold the constitutional power to nominate and appoint new justices if there is a vacant seat or if Congress moves to increase the number of justices on the Supreme Court.
Experts also indicated that if the legislation became law, the move would create a major rift between Biden and his Republican colleagues.
“If Biden and the Democrats in Congress did succeed in expanding the court, it would surely harm Biden’s relationship with Republicans and his reputation among moderate to conservative voters. One might argue that we’re already in a terrible equilibrium regarding the Supreme Court, and Biden is simply responding to McConnell’s decision to not even give Garland a hearing. But packing the Court is an even bigger step toward an even worse political equilibrium,” Anthony Fowler, a public policy professor at the University of Chicago, said.
In 2016, Senate Minority Leader Mitch McConnell (R-Ky.) rejected President Barack Obama’s Supreme Court nomination Merrick Garland, citing that it was an election year, but in 2020, McConnell firmly supported Trump’s nominee, Barrett, just days before the presidential election.
“Such a plan would further undercut Biden’s expressed plans for bipartisan cooperation,” Kollman said. “Let’s be clear, it would enrage Republicans. Enough Republicans are cooperating on appointments and procedural matters that Biden has an interest in keeping such cooperation going. This risks uniting all Republicans into complete intransigence.”
Democrats would need the approval from both the House and Senate, which would likely be an uphill battle, as a number of party leaders came forward Thursday pouring cold water on the idea.
When asked by a reporter if she supports the progressive legislative push to pack the court, House Speaker Nancy Pelosi (D-Calif.) replied “no” and pivoted to the need to focus on Biden’s infrastructure bill. Pelosi noted, however, that the potential reforms to the structure of the court aren’t “out of the question.”
“I support the president’s commission to study such a proposal, but frankly ... right now, our members and committees are working on putting together the infrastructure bill and the rest,” Pelosi said. “I don’t know if that’s a good idea or a bad idea. I think it’s an idea that should be considered and I think the president’s taking the right approach to have a commission to study such a thing, it’s a big step.”
Senate Judiciary Chairman Dick Durbin (D-Ill.) also said he would not back the idea just yet.
With razor-thin margins in both congressional chambers, progressive Democrats cannot afford to lose three or more votes in the House to pass the proposal. In the fifty-fifty split Senate, Democrats would need the support from sixty senators to bypass the filibuster, another issue that has drawn intra-party divisions.
“Lurking behind this controversy is the simple fact that our system of judicial appointments is becoming increasingly dysfunctional. Most of our peer countries, which is to say other Western democracies, make serious efforts to keep partisan politics as much as possible out of the process for appointing judges,” Perry Dane, a Professor of Law at Rutgers Law School, said. “We in the United States have, to the contrary, increasingly seen the promise to appoint the ‘right’ sort of judges become central issues in presidential campaigns and the actual appointment of those judges become mired in purely partisan fights.”
Dane added, “‘Packing’ the Court would try to correct for recent events… but it would leave the underlying system in place. That displays both a failure to understand the real flaws in the system and an unwillingness to go for broke and try to imagine a process that would better serve the ideals of judicial integrity and the rule of law.”
Rachel Bucchino is a reporter at the National Interest. Her work has appeared in The Washington Post, U.S. News & World Report and The Hill.