On April 15, 2021, Sen. Ed Markey (D-MA) and Rep. Jerry Nadler (D-NY) introduced the Judiciary Act of 2021. If passed, the bill would expand the Supreme Court for the first time in over a century and a half, increasing the size of the Supreme Court from nine justices to an unprecedented 13.
Sen. Markey and Rep. Mondaire Jones (D-NY), who co-sponsored the bill, have cited recent examples of increased politicization on the Supreme Court from the GOP as an issue that the Judiciary Act would fix, such as the Senate’s refusal to hold confirmation hearings for Merrick Garland in March 2016. President Obama appointed Garland to fill a vacancy on the Supreme Court after Justice Antonin Scalia’s death, but the majority-Republican Senate left the seat open for over a year until President Trump appointed Justice Neil Gorsuch as Scalia’s replacement.
The same Republican-controlled Senate rushed to fill the vacancy left by the death of Justice Ruth Bader Ginsburg in Trump’s final days as president. On Sept. 29, 2020, Justice Amy Coney Barrett was nominated to the Supreme Court 35 days before the presidential election; she was later confirmed on Oct. 26, 2020, just 27 days after her nomination and only eight days before Election Day. In comparison, Obama nominated Garland almost eight months before the 2016 election.
While Congressional Democrats may point to recent examples of judicial politicization, Kellogg professor Jörg Spenkuch, who has researched strategic voting on the Supreme Court, said the influence of politics on the Court has ebbed and flowed over time. Most notably, President Franklin D. Roosevelt tried to expand the court through the Judicial Procedures Reform Bill of 1937, so he could pass pieces of legislation important to the New Deal that the Court had previously struck down. The bill would have given the Supreme Court an upper limit of 15 justices, but Roosevelt dropped his plan when two justices upheld pro-New Deal legislation in an event historians refer to as the “switch in time that saved nine.”
Aside from Roosevelt’s brief, unfeasible attempt to expand the Supreme Court, the judiciary’s sweet spot of nine lifelong justices has remained intact for over 150 years, a norm which Spenkuch said should be maintained and respected by both parties to avoid partisan expansions in the future.
“If [Democrats] expand the Court for no reason other than pure politics,” Spenkuch said, “then the next time Republicans are in power, they may not feel bound by a relatively new norm that the Court has 13 members.”
There are arguments to be made on both sides of the issue. Proponents of expanding the Supreme Court view it as a countermeasure to so-called stolen seats by Republicans which they say have “robbed the court itself of some of its remaining legitimacy” and turned the Supreme Court into an “extension of the Republican Party.” Expanding the Court now would allow Democrats to rebalance its decisions before Republicans expand it themselves later down the line.
On the other hand, opponents of Supreme Court expansion point to this hypothetical exponential growth as a negative; Democrats expanding the Court now would only open the flood gates to future expansions whenever the minority party regained power. “[H]ow do you get to an expansion of any kind that won’t result in a similar expansion the next time the opposing party is in power?”
Despite the tradition of a nine-justice SCOTUS, the act of expanding the Supreme Court is fully constitutional and has actually happened several times in the history of the United States. When the Court was originally established in 1789, it only had six justices; that number rose to seven in 1807, nine in 1837 and an all-time high of ten in 1863. The number of justices fluctuated in the years following 1863, eventually returning to nine in 1869, where it’s stayed ever since.
While expanding the Supreme Court may seem controversial, this bill is not the first of its kind. On Sep. 29, 2020, Rep. Ro Khanna (D-CA) introduced a bill to limit Supreme Court justices to 18-year terms, cycling a new justice to replace the most senior every two years. While Rep. Khanna’s bill may garner more public support than Sen. Markey’s and Rep. Nadler’s – an Ipsos poll for Reuters found that 63 percent of Americans support Supreme Court term limits – it has remained in the House Committee on the Judiciary since it was introduced to the House nearly seven months ago.
Sen. Markey says the expansion of the Supreme Court will “restore balance and integrity” to a judiciary marred by the GOP’s “historically unprecedented actions,” a claim the same Ipsos poll supports. According to Reuters, “the poll found that only 49 percent of Americans have a ‘great deal’ or a ‘fair amount’ of confidence in decisions made by Supreme Court justices,” a figure which Spenkuch warns might get worse.
“How’s the politicization of the Court going to affect [the Supreme Court’s] perception going forward? It’s hard to imagine that it would improve the perception,” Spenkuch says. “Common sense would tell us that if politicization [of the Supreme Court] gets worse, or drags on, that at some point that trust that Americans place in the Supreme Court is going to erode.”
The Ipsos poll additionally found that only 38 percent of Americans support expanding the Supreme Court, which means mass public support is unlikely, although 20 percent of respondents said they were unsure. Combined with a Senate split down party lines and Speaker of the House Nancy Pelosi’s (D-CA) intention not to bring the bill to the House floor, the possibility of a Supreme Court with 13 justices remains questionable.
Spenkuch said there are pros and cons to introducing judicial term limits. One notable pro of term limits would be a more productive Supreme Court; research indicates older justices may be less productive, the Kellogg professor said.
“Political scientists now, for the most part, believe that term limits for politicians … are a bad idea because they remove the incentive to behave well when you’re nearing the end of your term,” Spenkuch added. “Maybe if justices could get reappointed, that might remove some of these adverse incentive effects.”
While term limits could potentially work as a solution to the politicization of the Supreme Court, Spenkuch doesn’t see expanding the Court in the same way.
“To me, the idea of court-packing looks a whole lot like the legislative branch trying to undermine judicial independence,” he said. “[Democrats] can’t remove Supreme Court justices, so what they’re going to do is they’re going to appoint enough to change the political makeup of the Court for future verdicts to go their way. That’s a very dangerous precedent.”