The Democrats have introduced a bill to expand the number of justices on the Supreme Court from 9 to 13.  This bill’s sponsor is Sen Ed Markey (D-MA) who said “The Republicans stole two seats on the Supreme Court, and now it is up to us to repair that damage.”   

The effort is condemned by Republicans, faces longs odds as well as raised questions about why the issue is being raised now and what Congress can actually do.  Such a move could allow President Biden to swing the current 6-3 conservative majority in favor of liberals.

The reason is simple and Democrats blame Mitch McConnell, former Senate Majority Leader between 2015 and 2021, and now Senate Minority Leader since January, 2021.  He is a Republican Senator from the great state of Kentucky.  In Early 2016, he blocked hearings or a vote on Judge Merrick Garland, President Obama’s nominee to fill the seat left by the sudden death of conservative Justice Antonin Scalia.  

McConnell said that in an election year, the voters should decide who will choose the next justice. When Donald Trump was elected, he chose Scalia’s replacement. But late in 2020, when liberal Justice Ruth Bader Ginsburg died, McConnell rushed through another Trump nominee to fill her a seat a week before the election which was won by Joe Biden.

There isn’t really a question on the legality of packing the court.  The Constitution leaves this decision to congress as it says, “the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may have time to ordain and establish.”

And from time to time, Congress has indeed changed the number of justices.  It was six when Congress passed the first Judiciary Act in 1789 and the number fluctuated in the mid-19th century, but has remained at nine justices since 1869. 

The question has been raised about precedent.  Yes, there is, but it is dubious.  In 1937, after winning a landslide reelection, President Franklin D. Roosevelt said the Supreme Court Justices were old and overworked, and he proposed to add one new Justice for every current Justice over the age of 70.  This could have expanded the court to 15 Justices.

But everyone understood FDR’s true motive.  He was angry with the old conservative justices who had struck down several of his New Deal measures designed to cope with the Great Depression.  Roosevelt told reporters, “They had a horse and buggy view of the Constitution.”

Despite huge Democratic majorities, the House and Senate took no action on FDR’s plan.  But later that year, the Supreme Court appeared to change direction.  A narrow majority upheld a New Deal measure to protect workers and unions as well as laws setting minimum wages.  It was dubbed “the switch in time that saved the nine.”

Biden’s obvious reason to add four justices is because with the latest appointment of Justice Amy Coney Barrett, the court has six Republican appointees who lean right and three Democratic appointees who lean left.  If Biden could get four appointees, the Democrats would hold a 7-6 edge and create a liberal majority.

The eldest of the current Justices is liberal Justice Stephen G. Bryer, who is 82.  He is expected to retire this year or next, allowing President to fill his seat.  That would probably change the count to 5-4.  Without packing, Republican appointees look to retain a lopsided majority for another decade or more.

In reality, prospect for packing the court isn’t good.  Biden himself has said he is no fan of court packing and opted to set up a 36-member commission to spend six months pondering possible reforms or changes to the Supreme Court.  

Even leading Democrats are lukewarm to the idea.  And House Speaker Nancy Pelosi (D-CA) said she was not enthused about the expansion bill and said “I have no intention to bring it to the floor.”

Also, Markey acknowledged Democrats would also first have to abolish the filibuster rule in the Senate to have a chance to pass his court expansion bill.  And even if that happened it would still require all 50 Democrats to vote in favor.

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