Are Dems right to propose Supreme Court expansion?
- On Thursday, April 15, 2021, Congressional Democrats presented legislation to expand the Supreme Court from 9 to 13 justices through the Judiciary Act of 2021. The bill is sponsored by Sen. Ed Markey and Representatives Jerry Nadler, Mondaire Jones, and Hank Johnson.
- Democrats began discussing expanding SCOTUS after the nomination of Amy Coney Barrett by President Trump on September 26, 2020.
- The Supreme Court of the United States (SCOTUS), instituted in 1787 (ratified in 1788) via Article III of the Constitution, established American’s Judicial branch. Congress decides how the Supreme Court functions. Congress’s first Judiciary Act of 1789 established six justices.
- SCOTUS has had nine seats following the Civil War, under President Ulysses S. Grant in 1869, made up of one chief justice and eight associate justices.
- A 2020 YouGov poll found that 47% to 34% of voters do not favor Democrats increasing the number of Supreme Court justices.
- The Supreme Court’s 2015 Obergefell v. Hodges decision was a 5-4 decision that legalized same-sex marriages.
An increase in Supreme Court Justices would create fewer partisan divides and a stronger feeling of consensus in the American judiciary branch. Issues with such a magnitude of importance as heard by the Supreme Court should not be decided by a simple majority of five to four. With a larger court, a wider spectrum of beliefs would be reflected in fewer narrow decisions. Also, if one or more justices were to become incapacitated, the court could still operate effectively.
Changing the number of justices on the Supreme Court could be done relatively easily as the number of justices is not mentioned in the Constitution but rather comes from an 1869 act of Congress. This is not a huge Constitutional crisis, just a simple matter of improving the function of government. The United States population is much larger than it was in 1869, and the size and reach of the government are radically larger and more complicated. It simply makes sense to increase the number of justices accordingly.
Many Republicans refer to the current Democratic effort as an unfair attempt at 'packing the court' with liberal-leaning judges. Those who feel this way may be right that Democrats are attempting to influence the court's makeup, but this is far from unfair. It's hypocritical for Republicans to cry foul after Mitch McConnell's efforts to block a vote on Former President Obama's nomination of Merrick Garland. Further, the United States citizens have elected a Democratic majority, meaning the majority of people support the values and platform of the Democratic party. This should also be reflected in the makeup of the highest court of the land.
'Packing' the Supreme Court by collaboration between America’s executive and legislative arms would be an outright assault on the US. It would undermine our three 'separate but equal' branches of government. After bouncing around significantly in the first 80 years of our country, the Supreme Court has remained steady at nine justices since 1869.
There is little left in the US that hasn't become politically divisive. Since the 1960s, the percent of those who trust Congress has dropped from the upper 70s to down near single digits. If Biden colludes with a Democratic Congress to increase the Supreme Court to a proposed 13 members, trust in government will eviscerate.
Supreme Court Justices haven't been exempt from making ideological decisions over the past 100 or so years. But by and large, Supreme Court decisions still are not supposed to be made along partisan lines, but according to what is Constitutional and what isn’t. There’s little reason to hope a newly packed court would bring back any form of perceived 'neutrality' from the Court. Quite the opposite is much more likely; our highest court would be used as a cudgel. If the White House and Congress push through the packing of the Court, that will not only undermine people's trust in it but will potentially open the floodgates of successive presidents continuing to attempt the same whenever they have a congressional majority.
Ruth Bader Ginsberg famously opposed court-packing, saying it would 'make the court look partisan,' and she was right. If Biden and the 117th Congress attempt to ramrod in additional Supreme Court justices, that will start us down a long dark road, and we can only hope to find our way back.