Supreme Court expansion is no longer dismissed as a crazy idea, not after six conservative justices hijacked a Texas case to ban almost all abortions in the state, issuing their opinion on a shadow docket in the dead of night without so much as signing their names. Even the chief justice, John Roberts, who wrote a dissent, is powerless to stop the slide. The stunning ruling, designed to advance an ideological agenda, adds urgency and credibility to efforts to overhaul the Supreme Court, knowing more such lopsided decisions are surely on the way.
“How can you see this happen and ignore the reality that this court has been captured by the Federalist Society and by right-wing elements of the Republican Party,” Minnesota Senator Tina Smith told The Daily Beast. “Instead of sitting and whining, I want to do something,” she said. And for Smith that meant signing on to the Judiciary Act of 2021, which would add four seats to the nine-member Supreme Court, making up for “two appointments that should have been made by other presidents,” she said, referring to Justices Brett Kavanaugh and Amy Coney Barrett, Trump appointees confirmed only because of Mitch McConnell’s sleight of hand in changing Senate rules.
Smith is the second Senate Democrat to support the legislation sponsored by Massachusetts Senator Ed Markey. Sen. Alex Padilla of California has also said he supports court-packing, though he hasn't yet signed on to the measure. The House bill has 31 cosponsors, mainly progressives. It’s not a stampede, but Supreme Court expansion is gaining traction like a slow-moving freight train bearing down on the political process. Former California Senator Barbara Boxer, once opposed to filibuster reform, a prerequisite to Supreme Court reform, now favors court expansion and other changes, including an age limit, and she is blunt in declaring Justice Stephen Breyer, 83, should step down while Democrats have the power to confirm his replacement.
“He’s had a wonderful career,” she told the Los Angeles Times. “Look, I had a wonderful career and people said, ‘How could you walk away?’ There’s a time to do it. There’s a season for everything.”
Breyer isn’t taking the hint, at least not yet. He’s out and about promoting his new book, The Authority of the Court and the Peril of Politics, which is based on a high-minded lecture he gave at Harvard declaring that the Supreme Court must be seen as above politics, and he and his colleagues all get along just fine. The notion that collegiality trumps partisan politics was perhaps truer than it is today when Breyer joined the Supreme Court, almost 30 years ago.
“I agree with Justice Breyer that the legitimacy of the court depends on it being seen as above politics—but it’s not being seen that way, and I’m willing to say the Supreme Court is not legitimate anymore,” said Chris Kang with Demand Justice. “What the court did in the Texas case is so extreme, middle of the night, an unsigned opinion, no oral arguments,” that there is no turning back.
“The court can’t help itself but rule in ways that hinder its own legacy—and the rule of law,” Kang continued. To educate voters about the need for Supreme Court expansion, Demand Justice is mounting a $1.5 million grassroots campaign. The advocacy group ran ads in Minnesota to thank Smith for her support. “Legislation is the only solution that is both long lasting and immediate,” said Kang. Polling has shown Democrats support Supreme Court expansion by a wide margin, and the abortion issue unleashed by the Texas ruling could prove galvanizing for Democrats in next year’s midterms.
After the Supreme Court announced in May that it would take a Mississippi case challenging Roe v Wade, the 1973 ruling that legalized abortion, Sarah Lipton-Lubet switched careers from abortion rights advocacy to become executive director of Take Back the Court, a Supreme Court reform group that was founded in 2018. “It was a clearly significant moment for me that this is the work I should be doing,” she said. “It’s a newer issue so it takes time for people to understand it. But once they do, they see it’s essential to preserving the core of our democracy.”
There’s what she refers to as “an incorrect notion that the Supreme Court is untouchable, and you’re stuck with the court you found.” Nine is not a magic number. The size of the Supreme Court has varied from just six justices in 1789 when the Constitution took effect to a high of 10 during the Civil War. The number nine was established by law in 1869. The phrase “court packing” has a negative connotation going back to FDR’s attempt to add justices that would be friendly to his New Deal.
FDR’s effort backfired when Congress wouldn’t go along with it, but the Supreme Court tempered its opposition to his agenda after he won reelection, negating the need for more justices. Today’s Supreme Court doesn’t appear to hold out any change in the tribal political stance of the three newest conservative justices—Neil Gorsuch, Kavanaugh and Barrett—and the two other longer-serving conservatives, Justices Clarence Thomas and Samuel Alito, have demonstrated a solid allegiance to the Republican right on social and cultural issues. Adding four justices, as the House and Senate propose, would bring the total to 13, identical to the number of circuit courts.
“The Markey bill makes sense. Four members makes sense,” said Smith. “People tend to focus on one reform, but there is a portfolio of reforms that we can look at including a judicial code of ethics.”
President Biden’s commission to study Supreme Court reform is due to report back by mid-November, but “it’s almost purely an academic exercise among legal elites,” said Kang of Demand Justice. “It’s not empowered to make recommendations, and most people (on the Commission) have an incentive to prop up the Supreme Court.” They’ve practiced before the Supreme Court and hold the position that the court can police itself, said Kang, who cites a law professor who testified he had an incentive not to criticize justices so he can get his students internships.
The justices themselves have a vested interest in promoting the idea that they are not beholden to party politics. That is Breyer’s justification to stay on the bench rather than resign to ensure his replacement is a Democrat. Justice Barrett, who was confirmed a week before the 2020 election because Senate leader McConnell forced the vote, had the gall to declare in a Sunday address at the McConnell Center in Louisville, where her benefactor introduced her, that there are no politics to see here.
“My goal today is to convince you this court is not composed of a bunch of partisan hacks,” she said. “Sometimes, I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”
If that means she’s been holding back, Katy bar the door.
—Clarification: An earlier version of this piece said Sen. Alex Padilla had supported the court-packing legislation. While Padilla has previously said he supports court-packing, Padilla has not yet formally cosponsored the legislation.
