As House Democrats tout a renewed effort to expand the Supreme Court (SCOTUS), Senate Democrats remain divided on both the feasibility and value of the scheme.
The plan, contained in Rep. Hank Johnson’s (D-Ga.) Judiciary Act, would add four new seats to SCOTUS.
The renewed push to pack the bill comes in the wake of SCOTUS’ landmark decision in Dobbs v. Jackson Women’s Health Organization, in which it overturned the abortion standard put in place by Roe v. Wade in 1973. The 6–3 decision was supported by all of the court’s six conservative justices and opposed by the three liberals on the court.
Following that decision, SCOTUS’ conservative justices also struck down a New York State gun control law that it deemed unconstitutional, in addition to a decision that severely constricted the scope of carbon regulations by the Environmental Protection Agency.
This string of conservative decisions, particularly the decision in Dobbs, has left Democrats scrambling for solutions to weaken the power of the court’s conservatives.
During a July 18 press conference, several progressive Democrats in the House renewed calls to expand SCOTUS and add four new seats, a scheme that critics have long referred to as “court-packing.”
Democrats insisted that they were not packing the court, but that conservatives had already done so under President Donald Trump, likely a jab at then-Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal to consider the nomination of Merrick Garland to fill the vacancy left by Justice Antonin Scalia’s unexpected death. Later, McConnell also quickly moved forward with the nomination of Amy Coney Barrett, even going so far as to change filibuster rules to ensure her confirmation in the GOP-controlled Senate.
“The nightmare scenario of GOP court-packing is already upon us,” said Rep. Mondaire Jones (D-N.Y.). “That’s how they got this far-right 6–3 majority in the first place.”
Rep. Mark Takano (D-Calif.) expanded on Mondaire’s claim, arguing that Republicans have for a long time emphasized judicial nominations to cement their control over the federal government.
Following the successful confirmation of three conservative justices under Trump, which left SCOTUS’ liberal branch substantially outnumbered, SCOTUS has “gone rogue” and “become a radical institution,” Takano claimed.
Johnson, who sponsored the Judiciary Act, said that the conservative majority has left “[the] Supreme Court at crisis with itself and with our democracy”; because of the majority, Johnson added, “basic freedoms are under assault.”
Though Johnson’s bill is not unprecedented—the Supreme Court has been expanded several times before—the last such expansion of the court, which raised the number of seats from seven to nine, came under President Andrew Jackson in 1837.
The move, which may be able to win the support needed to pass the House, is more contentious in the Senate.
Some lawmakers in the upper chamber, including Sen. Ed Markey (D-Mass.), have called for the overturn of the filibuster to pass the Judiciary Act, which would have little chance of passing the evenly-divided Senate.
“We need to repeal the filibuster so that we can expand the Supreme Court to reclaim the two stolen seats on a now illegitimate court, which are stealing the rights of American people,” Markey, who appeared at House Democrats’ July 18 press conference, said shortly after the overturning of Roe.
Similar calls have been echoed by Sen. Elizabeth Warren (D-Mass.), who in the past has said that “the court’s 6–3 supermajority will continue to threaten basic liberties for decades to come.”
However, more vulnerable Senate Democrats facing tough reelection battles have suggested their opposition to the proposal.
“You’d have to talk about specific details, but I have not been in favor of expanding the size of the court,” said Sen. Mark Kelly (D-Ariz.), whose 2020 victory saw Arizona send two Democrats to the Senate for the first time in decades. Republican strategists generally consider Kelly’s seat to be among the most vulnerable in this year’s midterms.
Sen. Raphael Warnock (D-Ga.), similarly, has called for his party to focus on fighting back inflation for the time being.
“Right now, I’m focused on lowering costs for Georgians who are pushing their way back and want to see us cap the cost of insulin, which is a bill we need to get done,” Warnock said on July 12.
Sen. Maggie Hassan (D-N.H.), who in 2016 won her seat by a .16 percent margin, has also suggested that she opposes expanding the court.
Given moderate opposition to the House plan, it is highly unlikely that the effort will go anywhere. In the Senate, Democrats supporting the bill would need the support of at least 60 members to overcome the 60-vote filibuster threshold, or would need to sway moderates like Sens. Joe Manchin (D-W. Va.) and Kyrsten Sinema (D-Ariz.) in favor of a filibuster carve-out.