Less than a week after President Joe Biden ordered a bipartisan commission on Supreme Court reform, a quartet of influential Democrats introduced a bill proposing the solution favored by the party’s left flank: expanding the number of justices. The legislation would transform the high court’s panel from the nine to the 13.
“Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court,” House Judiciary Chairman Jerry Nadler (D-N.Y.) wrote in a statement on Thursday. “But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression, and I am pleased to join my colleagues in introducing the Judiciary Act of 2021.”
Three other Democrats, Sen. Ed Markey of Massachusetts and Reps. Hank Johnson of Georgia and Mondaire Jones of New York, are also sponsoring the measure.
Markey depicts the bill as necessary to neutralize the court’s politicization by Republicans who refused to even consider the nomination of Merrick Garland, then a D.C. Circuit judge and now the U.S. attorney general, in an election year, only to discard that rationale by rushing the confirmation of Justice Amy Coney Barrett late last year to secure the high court’s current 6-3 conservative orientation. Many Republicans posited that because the voters had given Republicans both the White House and the majority in the Senate, the installation of Barrett was distinguishable from what occurred to Garland. In Garland’s case, voters gave Republicans the Senate while Barack Obama was in the White House — which Republicans interpreted as a mandate to block Obama’s agenda.
“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Markey charged in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities. This legislation will restore the court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”
Republicans, and some Democrats and non-partisan actors, are adamant that the idea is a recipe rather than a solution for high-court politicization. Justice Steven Breyer, a Bill Clinton appointee, warned against a measure like this earlier this month, and Trump-loyalist Senator Ted Cruz (R-Texas) attempted a preemptive strike against the idea last October, even though he supported an eight-justice court if Hillary Clinton won in 2016.
Almost certain to face uniform Republican opposition, the bill falls on the heels of Biden’s executive order last Friday empaneling a bipartisan commission to study how to reform the Supreme Court, a study that the president promised on the campaign trail. Biden proposed the measure as a way to mitigate accusations of politically-motivated “court packing” by including both parties in the process.
Bipartisan buy-in for the panel does not mean the Presidential Commission on the Supreme Court of the United States will have politically neutral leadership: the co-chairs, former White House counsel Bob Bauer and Yale Law School Professor Cristina Rodriguez, are both former Barack Obama officials.
Titled the Judiciary Act of 2021, the bill barely runs two pages and amends the definition of a quorum from the chief justice and eight associate justices to the chief and 12 associates. The four lawmakers introducing the measure will hold a press conference today at 11:30 a.m. Eastern Time at the steps of the Supreme Court, along with representatives of the left-leaning advocacy groups Take Back The Court, Demand Justice and Democracy Policy of Indivisible.
Read the bill below.
(Photo by Win McNamee/Getty Images)
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