Last Thursday, Senator Ed Markey (D., Mass.) introduced a bill to pack the Supreme Court, increasing the number of justices from nine to 13 in order to give Democratic appointees a one-vote majority.
Nearly a week later, Markey has yet to gain a single Senate co-sponsor for the bill. But more than a dozen Democratic senators who spoke to National Review in the Capitol refused to unequivocally rule out supporting the plan.
“We’re just building the educational movement, and I think it’s going to be aided by bad decisions made by right-wing judges appointed by Donald Trump,” Markey told National Review when asked if he’d picked up any co-sponsors. “When you ask me that question in a couple more months, depending upon the decisions that are made by the courts . . . you’re going to see the necessity.”
The public comments from Markey’s Democratic colleagues about his Court-packing bill ranged from skeptical to favorable, but most Democratic senators simply sought to dodge the issue altogether.
“I think Democrats need to be open to reform proposals to make sure there’s a fair playing field,” said Connecticut Democrat Chris Murphy. “Republicans have made it clear they’re never going to confirm a [Supreme Court] nominee of a Democratic president if they control the Senate. So Republicans have set a new precedent. We have to deal with it.”
Several other Democrats said they currently oppose the bill or have serious concerns about it, but might yet change their minds.
“It’s very hard for me to see that changing,” Senator Dianne Feinstein (D., Calif.) said of the current number of Supreme Court justices. She referred to Court-packing as a potentially “killer” wedge issue that Republicans could use in seeking to retake Congress.
If the Supreme Court issued a decision that deeply angered Democrats, such as overturning Roe v. Wade, could Feinstein see herself supporting legislation to increase the number of Supreme Court justices? “Well, I think anything is possible. But is it likely? No, because there’s such a history, and I think the Supreme Court as a body has been historically remarkably appreciated and admired by this country.”
Of course, if congressional Democrats responded to an adverse Supreme Court ruling by packing the Court, they would essentially be destroying the Court. Once a Democratic Congress increased the number of justices to 13, there would be no reason for Republicans not to add six justices the next time they control Congress and the White House. Democrats would then repeat the cycle once they retook Congress, and so on and so forth. The Court’s public legitimacy would be completely shot.
“Any expansion of the Supreme Court ought to be approached with extreme caution. I’m going to await the results of the presidential commission” studying the issue, said Senator Richard Blumenthal (D., Conn.). He said, “I haven’t ruled it out” when asked about the possibility of supporting Markey’s bill, but he emphasized his concerns about the idea. “There are all kinds of downsides, such as the spiraling increases in the numbers [of Supreme Court justices].”
Although many Democrats fear that talk of packing the Supreme Court limited their gains in the 2020 Senate cycle, two incumbents facing the voters in 2022, Mark Kelly of Arizona and Raphael Warnock of Georgia, declined to take Court-packing off the table.
Warnock would not say whether he supports or opposes changing the Supreme Court from nine to 13 justices. “I am singularly focused right now on getting voting-rights legislation passed,” he said when asked about Markey’s bill.
Kelly said he’s “not in favor” of Court-packing right now, but he wouldn’t rule out the possibility he could support it in the future. “I haven’t seen the legislation,” Kelly said. “I generally don’t think that’s a great idea.”
Kelly’s response falls well short of West Virginia Democrat Joe Manchin’s firm opposition to Court-packing.
When asked if he would support increasing the number of Supreme Court justices were Roe to be overturned, Senator Sherrod Brown (D., Ohio) replied: “I’m not going to answer, ‘What if, what if, what if?’”
“The conservative media like yours want to make it into a bigger issue and most of us are doing other things,” Brown added. Of course, it’s not the conservative media who have made this an issue — it’s the congressional Democrats who have introduced bills to pack the Supreme Court, and it’s their colleagues who, along with President Biden, have refused to emphatically reject the idea.
The last time Court-packing was seriously proposed — in 1937, when President Franklin Roosevelt tried it and was defeated by a Congress in which Democrats held about 80 percent of the House and Senate seats — the Senate Judiciary Committee issued a scathing report that called the proposal “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” Yet the Senate Democrats of 2021, despite controlling only 50 percent of the Senate, refuse to take the proposal off the table.
“I’m not persuaded yet, but, you know, we’ll just have to see,” said Senator Tim Kaine (D., Va.). His fellow Virginian, Senator Mark Warner, said the Court-packing bill is “not where I’m headed.”
Senator Jon Ossoff (D., Ga.) said of Markey’s bill: “It’s not something I’m currently advocating for.”
“It’s not my issue for today,” said Senator Bernie Sanders of Vermont.
“I’ll take a look at it, but it’s not something that I’ve been pushing for,” said Senator Gary Peters (D., Mich.)
Senator Martin Heinrich (D., N.M.) simply shrugged when asked if he could ever support a bill to increase the number of Supreme Court justices to 13, and Senator Jacky Rosen (D., Nev.) also stayed silent when asked about the proposal.
“I don’t support that,” New Hampshire senator Jeanne Shaheen said of Markey’s bill. Asked if any Supreme Court rulings could get her to support it, Shaheen replied: “I can’t speculate on that.”
Hawaii senator Brian Schatz, Maryland senator Ben Cardin, and Maine senator Angus King each echoed Blumenthal in saying that they would wait for the presidential commission’s report on the issue before deciding on a stance. “I think it’s premature. The president has appointed a commission to look at the subject,” King said of Markey’s bill. “I worry about the idea of changing the composition of the Court because I don’t know where it ends.”
Where it ends is pretty obvious: a fatally weakened Supreme Court. Senate Democrats know that, but even ones worried about Court-packing still seem to want to keep it a live issue in order to pressure the sitting justices.
“What happened under FDR was, in effect, the Supreme Court took a message,” Blumenthal said. “Decisions by this Court that are out of the mainstream could add fuel to the efforts to change the Court. By the same token, as happened under FDR, a Supreme Court that heeds the will of the vast majority of American citizens” could defuse the threat of Court-packing.
“What happened under FDR was the Supreme Court was making decisions that were contrary to the Constitution and deeply unpopular. There’s the danger, with this Court, it could do the same. But then the famous ‘Switch in Time Saves Nine’ prevailed for that Supreme Court,” Blumenthal said, referring to the contested claim that the Court began issuing favorable rulings on the New Deal because of FDR’s threat. “We’ll see what this one does.”
Or, as Representative Hank Johnson (D., Ga.), a co-sponsor of the Court-packing bill, put it at a press conference last week: “The Court needs to know that the people are watching.”