Before a quartet of Democratic members of Congress could take to the steps of the Supreme Court on Thursday to tout a new bill that would expand the number of justices from nine to 13, leaders of their party were already deflating that effort.
“I have no plans to bring it to the floor,” Speaker Nancy Pelosi said of the measure, pointing instead to a 36-member commission President Joe Biden announced last week to study Supreme Court expansion and other issues with the federal courts.
“I’m not ready to sign on yet,” said Senate Majority Whip Richard J. Durbin, who also runs the Judiciary Committee. “I think this commission of Biden is the right move. Let’s think this through carefully. This is historic.”
So the first question to Sen. Edward J. Markey at the Thursday news conference outside the high court was: “Where exactly do you go from here?”
The Massachusetts Democrat and the three others who introduced the bill — House Judiciary Chairman Jerrold Nadler and Rep. Mondaire Jones, both of New York, and Georgia Rep. Hank Johnson — defended the legislation’s introduction as necessary to start debate on the issue.
But they acknowledged the difficult road ahead. That includes changing longstanding rules in the Senate that allow the minority party to block legislation through the filibuster, since Republican senators are unlikely to vote for a bill that would flip the ideological balance of the court from a 6-3 conservative majority to a 7-6 liberal majority.
Texas GOP Sen. Ted Cruz, for example, went on Fox Business before the Democratic news conference to say that the bill would mean the end of free speech, religious liberty and gun rights.
Markey acknowledged that the measure the legislation would not pass the Senate under current circumstances.
“Ultimately, we have to repeal the filibuster. And then we can move this legislation,” he said. “Clearly, we would want Republicans to vote with us, but if they are not willing to participate in that effort, then we can still do this on a … basis of 51 votes.”
Nadler and the other backers of the legislation said the Supreme Court itself would make the case for the bill with their Democratic colleagues.
“I believe that as events unfold, as the court comes down with decisions destructive to a woman’s right to choose, as they come down with decisions destructive to the climate, as they come down with decisions destructive of civil liberties, I believe that the speaker and others will come along,” Nadler said.
But Nadler wasn’t exactly forceful when asked if he would bring it up for a vote at the Judiciary Committee. “We’ll have to see where it fits in our schedule, but I anticipate it,” he said.
Johnson hinted that another reason for the bill might be to curtail some of the decisions Democrats oppose before they happen. “The court needs to know that the people are watching,” he said.
The threat of expanding the Supreme Court may be one reason the justices have taken a long time to decide what to do with a closely watched challenge to a Mississippi law that some see as an opportunity for the high court to erode the constitutional right to an abortion first established in the 1973 Roe v. Wade decision.
“There are few circumstances under which I can imagine Congress expanding the Court, but a big, clear reversal of Roe might be an exception,” tweeted Mary Ziegler, a law professor at Florida State University who has published two books on the history of abortion in America.
Senate Minority Leader Mitch McConnell said the bill showed that the “left wants a sword dangling over the justices when they weigh the facts in every case.”
“The threats are the point. The hostage-taking is the point,” the Kentucky Republican said on the floor Thursday. “And responsible people across the political spectrum have an absolute duty to denounce this."
Justice Stephen G. Breyer indicated recently that the Supreme Court is indeed paying attention, when he used a speech at Harvard Law School to warn lawmakers that expanding the number of justices would erode public trust in its decisions.
The Supreme Court’s authority depends on “a trust that the court is guided by legal
principle, not politics,” Breyer said on April 6. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”
Liberal advocacy groups such as Demand Justice agitated for Democrats to add seats to the Supreme Court after a series of high court confirmation fights.
Democrats decried Republicans for what they called a sham and hypocritical confirmation process for Justice Amy Comey Barrett just days ahead of the Nov. 3 elections that determined control of the White House and the Senate.
Four years earlier, Republicans had refused to consider President Barack Obama’s nominee, Merrick B. Garland, for eight months because they said it was too close to a presidential election. Garland is now attorney general.
At the Democratic news conference Thursday, Christopher Kang of Demand Justice said that the Supreme Court’s decisions on voting rights cases show that it is the time to expand a court that has been hostile to voting rights in the recent past.
“Already 361 voter suppression bills have been introduced in 47 states across the country,” Kang said. “Our very democracy hangs in the balance of this fundamentally unbalanced Supreme Court.”
But the White House and Democratic leaders pointed Thursday to the Biden commission when asked about the expansion of the Supreme Court.
White House Press Secretary Jen Psaki said the commission is “going to come back to the president with a report on what their discussions are and what their findings are. So he’s going to wait for that to play out and wait to read that report.”
She said Biden is looking forward to assessing it himself, “and I expect he will not have more to convey about any recommendations or views he’ll have until he reads that report.”
“He believes that members of Congress have the right to put forward legislation on issues they support. His view is that he wants to hear from this commission that has a range of viewpoints,” Psaki added.
Pelosi said the idea of adding Supreme Court seats “should be considered and I think the president is taking the right approach to have a commission to study such a thing. It’s a big step. It’s not out of the question, it has been done before.”
And Durbin, when asked about the possibility of a Senate Judiciary Committee vote, said: “This is the earliest stage of the conversation. I really want to see what the commission proposes.”