On Thursday, Democrats in the U.S. House and Senate plan to unveil legislation to expand the size of the Supreme Court, potentially reversing the originalist gains under former President Donald Trump.
The bill would add four seats to the Court, bringing the total from nine to 13, sources told The Intercept. Congress has the authority to set the number of justices on the Court, which has remained at 9 since 1869.
House Judiciary Committee Chair Jerry Nadler (D-N.Y.), Subcommittee Chair Hank Johnson (D-Ga.), and Rep. Mondaire Jones (D-N.Y.) are leading the bill in the House while Sen. Ed Markey (D-Mass.) will lead the effort in the Senate.
Last week, President Joe Biden issued an executive order creating a commission to study “Supreme Court reform” — likely the first step toward packing the Court.
Superficially, it seems that Trump has successfully gotten conservatives confirmed to the Supreme Court. In reality, however, Trump selected justices who would apply the clear meaning of the Constitution and the laws passed by Congress, as understood at the time. Trump did not seek out activist justices who would write conservative ideas into the Constitution — that’s exactly the kind of activism Trump and his allies sought to prevent.
Democrats, however, see the Supreme Court as a kind of super-legislature, using the Constitution as a tool to drag history forward. They look back on Roe v. Wade (1973) — which struck down state laws on abortion — and Obergefell v. Hodges (2015) — which unilaterally redefined marriage — as positive steps toward progress rather than gross abuses of the Supreme Court’s power. Democrats supported the Court inventing new “rights” out of whole cloth because those rights involved abortion and same-sex marriage. The end justified the extremely unrepresentative means.
While Democrats claim their efforts to pack the Court represent the righteous anger over Republican efforts to get originalists on the bench, Democrats give away the game when they call originalism “racist” or “sexist.” By doing so, Democrats not only suggest that following the plain text of the Constitution and the laws passed by Congress is a partisan effort, but that obeying the oath to uphold the Constitution is somehow an exercise in oppression.
The Democrats’ bill to expand the Supreme Court is unlikely to succeed. While it would likely pass the House of Representatives, the bill is almost certain to fail in the Senate, where it would need 60 votes. Sen. Joe Manchin (D-W.Va.) has repeatedly pledged to oppose abolishing the filibuster and packing the Supreme Court.
This Democratic effort seems particularly noteworthy given Biden’s recent order. Do Nadler and Markey really want to cast a vote of no confidence in Biden’s Supreme Court commission?
At the very least, this bill reveals just how desperate Democrats are to gain back control of the Court in order to weaponize it for their agenda.