Congressional Democrats will unveil a bill to expand the number of justices on the Supreme Court from nine to 13 on Thursday. While the hopes for the bill to become law are dead on arrival, the effort could revive Democratic conversations to reform the court that gained momentum after Justice Amy Coney Barrett was rushed through the nomination process just before the election.
The bill is sponsored by Vermont senator Ed Markey and House Judiciary Chairman Jerry Nadler of New York, and according to a press release, it will be announced outside the Supreme Court building among progressive activists from groups that advocate for SCOTUS expansion, including Take Back the Court, Demand Justice, and Indivisible. Speaking with NBC News, Brian Fallon, a former Senate leadership aide who co-founded Demand Justice, gave some perspective for the goal of the effort — which will fail in a Senate in which two Democrats and 50 Republicans have already rejected the idea of court expansion. “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,” Fallon said.
While a 13-member Court would be the largest in its history, the number of justices fluctuated over its first 80 years; since 1869, the number has held steady at nine. Republicans in recent years have also proposed a change to the number: In 2016, Ted Cruz proposed that the GOP-controlled Senate continue to block a Democratic nominee if Hillary Clinton were elected that November. Republicans blocked Merrick Garland’s nomination in 2016 — justifying the act because it was an election year — then ignored that standard by rushing through confirmation of Amy Coney Barrett ahead of the 2020 election. The power balance on the court shifted to a 6-3 conservative majority under Donald Trump.
Last week, President Biden announced a bipartisan, 36-member commission to appraise “the merits and legality of particular reform proposals,” including an expansion of the court or retiring the standard of lifetime appointments. The report is scheduled to be completed 180 days after its first public meeting.