Democrats in the House and Senate on Thursday are planning to introduce legislation to expand the number of seats on the U.S. Supreme Court from nine to 13, a proposal hailed by progressive advocacy groups as a critical step in combating the conservative takeover of the high court and protecting key constitutional rights.
Led by Reps. Jerry Nadler (D-N.Y.), Hank Johnson (D-Ga.), and Mondaire Jones (D-N.Y.) in the House and Sen. Ed Markey (D-Mass.) in the upper chamber, the Judiciary Act of 2021 is set to be unveiled just days after President Joe Biden signed an executive order forming a 36-member commission tasked with studying potential Supreme Court reforms, including expansion.
But Demand Justice executive director Brian Fallon said in a statement late Wednesday that "we cannot afford to wait six months for an academic study to tell us what we already know: the Supreme Court is broken and in need of reform."
"This bill marks a new era where Democrats finally stop conceding the Supreme Court to Republicans," Fallon said of the Democrats' new legislation. "Our task now is 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."
Sean Eldridge, president of advocacy group Stand Up America, noted on Twitter that "expanding the Supreme Court is far from unprecedented."
"Congress has changed the size of the Court seven times in our nation's history, including five times to add seats to the Court," Eldridge wrote. "The past five times Congress expanded the Supreme Court, it set the number of justices to match the number of circuits in the federal court system. Today, there are 13 circuit courts, and the Judiciary Act follows precedent by increasing the Supreme Court to 13 justices."
The Judiciary Act, the details of which were first reported by The Intercept, comes as Republican-appointed justices hold six of the Supreme Court's nine seats, leaving conservatives well-positioned to target reproductive rights, voting rights, the Affordable Care Act, and more.
The most recently confirmed judge, Amy Coney Barrett, was rushed through the then-Republican-controlled Senate just days before the 2020 November presidential election, after millions of Americans had already cast their ballots by mail. And progressives consider Justice Neil Gorsuch—one of three total justices nominated by former President Donald Trump—to be occupying a "stolen seat," given that he was confirmed after the GOP refused hold hearings for Merrick Garland, an Obama pick.
"Our democracy is under assault, and the Supreme Court has dealt the sharpest blows," Jones tweeted Wednesday, pointing to the high court's rulings in Citizens United v. FEC, Shelby County v. Holder, and Rucho v. Common Cause.
"To restore power to the people," wrote Jones, "we must expand the court."
The new bill will be officially introduced Thursday morning on the steps of the Supreme Court, but the proposed reform faces daunting odds of getting through Congress as Democrats cling to narrow control of both chambers and the Senate's 60-vote legislative filibuster remains in place.
Biden, furthermore, has voiced skepticism about calls to expand the court, saying in October that he's "not a fan" of the idea.
Speaking to the Wall Street Journal on Wednesday, Markey acknowledged the bill's long odds and said, "We have work to do to organize, mobilize, and spur Congress to take action to reform the court."
In a statement endorsing the Judiciary Act, Stand Up America political director Brett Edkins warned that "unless Congress works to depoliticize the judiciary and stop activist justices like Brett Kavanaugh and Amy Coney Barrett from striking down policies supported by a majority of Americans, our voting rights, racial justice, and healthcare will continue to be at risk."
"For decades, Republicans have rammed radical right-wing justices onto the Supreme Court in a coordinated effort to defend corporate special interests, attack Americans' constitutional rights, and erode our democratic institutions," said Edkins. "The Judiciary Act undoes the damage conservatives have done to the highest court by adding four seats to the bench, matching the number of federal appellate courts."
"Time is of the essence—and we must act before the right-wing justices on the Supreme Court rig the rules of our democracy even further," Edkins added. "That starts with both chambers quickly passing the Judiciary Act."