Senate Democrats unveiled a new bill that would pack the Supreme Court by adding four new seats beyond the current nine seats, a move that could lead to the loss of the court’s current conservative majority.
The legislation comes after President Joe Biden’s commission on Supreme Court reform failed in December 2021 to recommend expanding the size of the nation’s highest court. Public approval of the court has fallen in recent years, according to polls. The late Democratic President Franklin Roosevelt tried to pack the court in the 1930s after it kept striking down his New Deal policies but the plan ultimately went nowhere after the public and lawmakers from his own party turned against it.
Sen. Ed Markey (D-Mass.) unveiled his new legislation, the proposed Judiciary Act of 2023 (pdf), at a press conference on the steps of the Supreme Court on May 16.
“Our most fundamentally held freedoms are under attack from an illegitimate, far-right United States Supreme Court,” Markey said.
“And if we fail to act, it will only get worse. We must fix this broken and illegitimate court. We must expand the United States Supreme Court.”
The court-packing proposed by Democrats is justified because Senate Republicans repeatedly “broke the rules” about the confirmation of Supreme Court nominees in recent years, Markey claimed.
After conservative Supreme Court Justice Antonin Scalia died in February 2016, Senate Republicans refused to allow a vote on then-President Barack Obama’s nominee, Merrick Garland, who is now President Biden’s attorney general.
Republicans denied Garland “a hearing and a vote that he was entitled to,” Markey said, even though there is no constitutional provision, law, or Senate rule that required the Senate to vote on the nomination.
“They claimed that they couldn’t fill a seat in a presidential election year, even with the election nine months away, and they kept that seat vacant for 422 days,” the senator said, adding that Obama’s successor, then-President Donald Trump, nominated Justice Neil Gorsuch to the court days after his inauguration.