House Speaker Nancy Pelosi (D-Calif.) said that she has “no plans” to bring the bill to the floor and that she supports a commission created by President Biden that will produce a report this year on possible changes to the court, including expansion and term limits.
Senate Judiciary Committee Chairman Richard J. Durbin (D-Ill.), whose panel has oversight of the judicial branch, also said he is not ready to support such legislation.
“Let’s think this through carefully,” he said. “I don’t question that my colleagues in the House and Senate have their own theories, and let’s have that conversation. But keep in mind the ultimate goal here is to make the historically proper choice for the administration of justice in the long term.”
The authors of the legislation expressed confidence that wary leaders would soon come around.
“Speaker Pelosi is a very good judge of events and of history,” said House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.), one of the sponsors. He added that once the current court hands down more “destructive” decisions, “Speaker Pelosi and others will come along.”
While Republicans have traditionally focused on the importance of the Supreme Court as a way to energize their base on social and religious issues, liberals in recent years have sought to turn the makeup of the court into a bigger concern within the Democratic Party. Many Democrats remain furious that Senate Republicans refused to consider President Barack Obama’s court pick Merrick Garland in 2016 because it was an election year but then pushed through President Donald Trump’s nomination of Amy Coney Barrett last year under similar circumstances.
Competing interests within the party — with liberals pushing for court expansion and moderates cautioning against setting such a precedent — have led Democratic leaders to take a careful approach to changing the structure of the court.
Adding to the Democrats’ current anxieties is whether liberal justice Stephen G. Breyer, 82, will soon retire, allowing Biden to nominate a like-minded successor while the party controls both the White House and the Senate. Biden has promised to fill any Supreme Court vacancy with a Black woman, which would be a historic first.
Breyer has given no public indication of his plans but bashed the idea of adding justices in a speech this month at Harvard Law School, where he warned of further politicizing the court.
“If the public sees judges as politicians in robes, its confidence in the courts — and in the rule of law itself — can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.
The White House reacted cautiously to the proposal unveiled Thursday.
Biden “believes that members of Congress have the right to put forward legislation on issues they support,” White House press secretary Jen Psaki said. “His view is that he wants to hear from this commission that has a range of viewpoints.”
Republicans were quick to criticize the bill, calling it a power grab and an attempt to have the Supreme Court put in place the liberal policies that Democrats have been unable to advance through Congress.
“Does power mean so much to you that absolute power corrupts absolutely, that you will change the courts to capture another form within a judicial power simply to control more?” House Minority Leader Kevin McCarthy (R-Calif.) said at a news conference. He described the legislation as part of a “socialist” agenda and as a “plan to dismantle a government institution.”
Other Republicans noted past opposition to expanding the courts from Biden as well as Justice Ruth Bader Ginsburg, who died last year, leaving open the seat filled by Barrett.
“They obviously aren’t looking to Democrat-appointed justices, like Ginsburg, that said nine is the perfect number,” said Sen. Charles E. Grassley of Iowa, who serves as the top Republican on the Senate Judiciary Committee
The sponsors of the legislation — Nadler, Sen. Edward J. Markey (Mass.) and Reps. Hank Johnson (Ga.) and Mondaire Jones (N.Y.) — said their proposal would not have been needed had then-Senate Majority Leader Mitch McConnell (R-Ky.) not blocked Garland’s nomination in 2016 and then pushed through Barrett last year, tilting the balance of the court.
“Some people will say we’re packing the court,” Nadler said Thursday. “We’re not packing it. We’re unpacking it. Senator McConnell and the Republicans packed the court over the last couple of years.”
The four lawmakers also argued that it’s common sense to expand the Supreme Court, noting that nine justices currently sit on the court because there were only nine circuit courts during the 19th century. Now that there are 13 circuits, the lawmakers said, “thirteen justices for thirteen circuits is a sensible progression.”
A Democratic aide familiar with the legislation said the move to introduce it now was a response to Biden’s decision last week to form his commission, which was viewed by liberals as evidence of party leaders’ hesitancy to embrace making changes to the court. The aide, who spoke on the condition of anonymity to describe private discussions, pointed out that while Biden’s commission would produce a report, the members were not directed to outline specific recommendations.
Moreover, there was some frustration that the White House did not involve people with interest in reshaping the judiciary into the commission’s study group, the aide said.
Republicans and their allies are quickly moving to make the legislation a campaign issue.
The conservative Judicial Crisis Network is targeting Democrats with a new 30-second ad that uses clips of Biden when he was Senate Judiciary Committee chairman and denounced the idea of expanding the court as “corrupted by power” and “a bonehead idea.” The group is investing $1 million so the ad can run nationally on cable for three weeks.
Rep. Jim Jordan of Ohio, the top Republican on the House Judiciary Committee, pounced on the issue moments after it was reported Wednesday night that Nadler would introduce his plan. Jordan raised the matter as he attempted to focus a markup of unrelated legislation on the Supreme Court.
“If you don’t think it’s important that Democrats are trying to expand the Supreme Court, I think that’s a pretty important issue for the committee,” he said as Democrats argued that the committee should focus on the business at hand — legislation to create a commission that would study reparations for the descendants of enslaved people.
The issue is unlikely to go away soon, given liberals’ interest in keeping it on the agenda and Republicans’ desire to make it a political issue ahead of the 2022 midterm elections.
Pelosi did not shut the door on expanding the court, even as she made clear that the current proposal isn’t going anywhere right now. “I think it’s an idea that should be considered, and I think the president is taking the right approach to have a committee to study such a thing,” she said. “It is not out of the question. It has been done before in the history of our country, a long time ago. The size of our country, the growth of our challenges in terms of our economy, etcetera, might necessitate such a thing.”