Democrats are running away from ‘packing’ the Supreme Court
WASHINGTON — Republicans continue lambasting Democrats for wanting to “pack” the Supreme Court with additional justices.
But GOP rhetoric is distorting reality.
Most vulnerable Senate Democrats are actually running away from progressive calls to expand the court beyond its current nine justices. Even President Joe Biden, who last month unveiled a Supreme Court reform proposal, excluded the addition of additional justices.
“Curious your thoughts on expanding the size of the Supreme Court?” Raw Story asked Sen. Tammy Baldwin (D-WI).
“We’re commencing on an important discussion, and of course we've heard the president's proposal,” Baldwin — who’s facing Republican businessman Eric Hovde this fall — told Raw Story. “There's often been discussion about what you're asking about. I'm at the very early stages of evaluation.”
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“Yeah?” Raw Story pushed. “But you’re supportive of ethics reform?”
“Ethics for sure,” Baldwin said after casting one of her last votes before the Senate broke for its August recess last week.
Baldwin is with most every other Senate Democrat, as they unite around an ethics reform proposal for the Supreme Court.
Reform within the high court has been of particular Democratic interest since ProPublica first broke the news of Justice Clarence Thomas living a lavish lifestyle — one filled with free private jets, exclusive resorts and luxury yachts — on billionaire donor Harlan Crow’s dime.
But most Democrats in power have also stopped short of outrightly calling for expanding the court to, say, 12 or 13 or 15 justices — a move that would ostensibly give a Democratic president the power to fundamentally alter the court’s ideological balance of power.
This isn’t something they’re particularly keen on advertising, however, as they tip-toe around the topic so as not to alienate the progressive — and energized — wing of the Democratic Party, which would love to see Biden, or Kamala Harris were she to win the White House, nominate a slate of new liberal justices.
Democratic divisions
Biden’s package of potential Supreme Court reforms includes capping justices’ careers on the court at 18 years and the installation of an enforceable code of ethics.
While you wouldn’t know it based on Republican rhetoric — from former President Donald Trump on down to the conservative pundit class — Biden has squarely rejected calls to expand the Supreme Court.
So unenthused are most congressional Democrats about expanding the court that one congressional proposal to expand the size of the Supreme Court to 12 justices — the Judiciary Act of 2023 from Sen. Ed Markey (D-MA) — has sat collecting dust for months, not even gaining a single new supporter in the past year.
Besides Markey, it’s supported by Sens. Tina Smith (D-MN) and Elizabeth Warren (D-MA), but that’s it at present. If Rep. Adam Schiff (D-CA) wins his race to replace the late Dianne Feinstein in the Senate, the measure to expand the court could gain a new sponsor.
“Right now, people recognize that we've got to do something, and so there's a lot of negotiation about what's the right way to reform the Supreme Court,” Warren told Raw Story as she was walking to her car outside the U.S. Capitol. “But on our side, we recognize that we're not going to save our Constitution and our nation if the United States Supreme Court is going to make declarations that presidents get to be kings and Congress can't do their business.”
Added Warren: “We're still talking.”
If they’re talking, it’s not to their vulnerable colleagues, such as Baldwin.
‘Have not even looked at it’
Before Congress kicked off its August recess, Raw Story interviewed 12 Senate Democrats — including the chair of the Judiciary Committee, three of the Senate’s most embattled incumbents and, arguably, the chamber’s fiercest proponents of ethics reform — about so-called court packing proposals for the Supreme Court.
All told, they reveal the vacuousness of the right’s Supreme Court-packing rhetoric, such as in July, when a Trump campaign statement — reacting to Biden’s withdrawal from the 2024 election — declared: “It’s all part of Kamala’s scheme to pack the Supreme Court with far-left radical judges who will render decisions based on politics, not the law.”
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But that’s far from reality. Democrats aren’t just divided over the topic of court packing — many run away from it altogether.
Inside the Democratic Caucus, most senators aren’t interested in discussing it or plead ignorance about it.
“Have you looked at Markey's measure to expand the size of the Supreme Court?” Raw Story asked.
“I haven’t,” Sen. Jon Tester (D-MT) — who’s facing former Navy Seal Tim Sheehy in November — told Raw Story.
“Haven’t even looked at it?”
“I have not even looked at it,” Tester said of the decades-old debate that stretches back to the days of President Franklin D. Roosevelt. “The question I have is, where’s it stop? Look, accountability is really important, I don't care what branch of the government you're in, and I'm all about accountability transparency.”
Raw Story asked Sen. Bob Casey (D-PA): “Are the calls in your party to expand the size of the court – like Ed Markey’s bill — are those unhelpful? Because when you watch Fox or Newsmax, the whole party gets pegged as ‘progressive’ on the issue.”
“Look, the president made a really thoughtful proposal on a range of issues,” said Casey — who’s running against Republican businessman Dave McCormick this cycle. “The question of the makeup of the court, that's a question that I've got to take a closer look at. I just haven't spent the time to examine that.”
Casey has company.
“No I have not looked at it,” Sen. Catherine Cortez Masto (D-NV) — who squeaked out her reelection victory by some 8,000 votes in 2022 — told Raw Story. “It really doesn't take the politics out of it.”
Before coming to Congress, Cortez Masto served as Nevada’s attorney general. She says that these days, she’s hearing about the judiciary from more than angry base voters, including from many bewildered lawyers.
“Because they've also seen under a Trump administration the caliber of the [judges] from the Ninth Circuit, which is outrageous. And so they're having to deal with it, so there's a lot at stake,” Cortez Masto said.
Cortez Masto was especially enraged when the John Roberts-led Supreme Court did away with “Chevron deference” — a decades-old Supreme Court ruling that enabled Congress to pass broad bills before experts in federal agencies wrote out the rules and regulations needed to implement those statutes.
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“It's a matter of getting it right, and watching what's coming out of the court now and watching not just rights being eroded, l also recognize that the executive branch agencies have a role to play in discretion in how they implement our programs is very important,” Cortez Masto said. “And for them to overturn Chevron is not just impacting at the federal level, but it is impacting at the state level.”
She says the bubble the nation’s top justices inhabit is having real world consequences beyond Democrats’ fight to restore nationally recognized abortion rights, which seems to get the most attention since Roe v. Wade was wiped away. Cortez Masto says the justices are daft when it comes to the art of legislating.
“You're not going to get it right on the first try — any legislation. You're hopeful, you bring all the stakeholders together, you're there, everybody solving the problem. Everybody has input, but sometimes it's so complex that it takes two or three times to get it,” Cortez Masto said. “That's why it is important that you have that flexibility with those agencies to hear what they're saying, to work with them to implement the ratio. I just think we need to take them out of that process. And what the court has done is injected themselves into the process.”
That’s why Cortez Masto and other Democrats are focusing on ethics reform and not even entertaining proposals to expand the court.
It’s not just vulnerable lawmakers. Even party leaders are staying away from the proposed “packing.”
“I haven’t come out for it,” Senate Judiciary Chair Dick Durbin (D-IL) acknowledged to Raw Story.
‘Term limits are where the mainstream is’
Some progressive Democrats still want to expand the court. But they largely acknowledge that they likely won’t get their way — at least not yet.
“Term limits are where the mainstream is right now. I think it's very clear that the court is out of control and operating in a totally partisan, in some cases unlawful, way,” Sen. Brian Schatz (D-HI) told Raw Story. “There's a recognition that there are three branches of government and these guys shouldn't be permitted to operate with total impunity.”
For many in Congress, it’s started to feel like this Supreme Court is slowly taking power away from the legislative branch, which Schatz bemoans.
“Doesn't mean we should interfere with their individual decisions, but the structure of the court, the ethical standards of the court, how many justices there are, how many circuits there are — all of those are subject to congressional action,” Schatz said. “These particular justices have decided that any exertions of article one power is some sort of obscene transgression and I think the public is wise to that.”
“But expanding the court just goes too far?” Raw Story pressed.
“I don’t know if it goes too far. I just think we should start the conversation where everyone is,” Schatz said.
Biden’s court reform package is uniting the Democratic Party where Chief Justice John Roberts has failed to, because while Roberts convinced justices to adopt an ethics measure, there’s no current mechanism to enforce it.
While Democrats on the Judiciary Committee have fought all year for ethics reform Sen. Sheldon Whitehouse (D-RI) — the author of the SCERT or Supreme Court Ethics, Recusal, and Transparency Act of 2023 — says it’s helpful to have the president on board, too.
“I'm very happy about it. I'm particularly happy with his recommendations aligned with my bill,” Whitehouse told Raw Story.
As for expanding the court?
“Investigation comes first,” Whitehouse said. “I think the aperture for that is not there yet.”
The clock’s ticking, so Dems say keep it bipartisan
Another loud reform advocate agrees. Before Biden came out in favor of an 18-year term for justices, Sen. Cory Booker (D-NJ) proposed as much with his TERM — Supreme Court Tenure Establishment and Retirement Modernization — Act.
“So whatever tact we've taken, this is why I think the president's measures were so solid, it should be things that objectively are not partisan,” Booker told Raw Story. “And that really helped to restore the prestige and faith to the court.”
Booker says there’s little time to waste.
“This is a real crisis for the Supreme Court right now that the legitimacy of the court is being called into question by people across the political spectrum. We have individuals who are receiving literally millions of dollars in gifts from people that have matters before the court order or fighting logical preferences of the court,” Booker said. “This is very problematic.”
As for calls by Markey and other progressives to expand the size of the court, Booker says it alienates the very Republicans they need to win over to pass any reform measures.
“I haven't looked at the specifics of this proposal. It's like, when does that stop when both sides are trying to do that for political advantage? I think it could be that they could fall into partisanship,” Booker said. “I'm not criticizing the measure. I just know that I have resisted calls to do things that don't have wide bipartisan support.”
In spite of all the accusations that Democrats want to pack the court, most Democrats, including Georgetown educated lawyer Sen. Mazie Hirono (D-HI), have rejected those calls from the party’s leftward flank.
“We should start with the fact that they should have a code of ethics. It’s nuts that you can have a Supreme Court justice or justices accepting millions of dollars in entertainment. Like, what the heck is that?” Hirono told Raw Story. “None of us get to do it, and thank goodness not!”
Supreme Court 2022, Image via Fred Schilling, Collection of the Supreme Court of the United States
Sen. Josh Hawley (R-MO). (Nash Greg/TNS)