In push to expand Supreme Court, Hill Democrats hit snag

Rep. Adriano Espaillat (D-NY) used to think the only people who paid close attention to the Supreme Court were ideological activists or political professionals inside the Washington Beltway. The more the congressman hears from voters in his upper Manhattan-based district, the more Espaillat realizes he was wrong.

“I hear about the Supreme Court from constituents all the time,” Espaillat said in an interview outside the Capitol on July 11. “They say the court is a runaway train.”

Espaillat is bound to stop it. He has co-sponsored legislation that would buck more than 80 years of precedent by adding seats to the nation’s highest judicial tribunal, bringing the number of justices who sit on the high court to 13 from nine. The latest version of the bill, the Judiciary Act of 2023, had gone nowhere in the Republican-controlled House. Then on July 1 came the Supreme Court’s decision in Trump v. The United States. Like other high-profile decisions this term, the ruling was 6-3, a reflection of the high court’s conservative majority.

Democrats decried the decision as the equivalent of a get-out-of-jail-for-free card to former President Donald Trump, whose supporters rioted at the Capitol on Jan. 6, 2021, while Congress sought to certify the results from the recently concluded presidential election, which Trump lost. Espaillat said after talking with his House Democratic colleagues, he believes more will support the legislative effort to expand the high court.

“There’s a feeling that something needs to be done,” he said.

Democrats’ disaffection with the high court has grown. In 2016, Hill Democrats howled in protest when then-Senate Majority Leader Mitch McConnell (R-KY) held up President Barack Obama’s nomination of Washington, D.C., Circuit Judge Merrick Garland to fill the seat of the late Antonin Scalia, a conservative, until after the presidential election — an unprecedented delay. When Trump was elected president, nearly all Senate Democrats voted against his three picks for the high court, each of whom was confirmed anyway.   

Congressional Democrats continue to be dismayed. They were shocked by the Dobbs v. Jackson Women’s Health Organization decision in 2022, which overturned Roe v. Wade and Doe v. Bolton, returning the question of the legal status of human embryos and fetuses to the states. They are furious with Trump v. United States, which gave presidents after they leave office absolute immunity from legal trouble for official acts related to their constitutional duties and presumed immunity for acts that fall somewhat outside it.

As Espaillat discovered, ordinary Democratic voters, too, are alienated. According to a poll conducted by the Associated Press and National Opinion Research Center last month, 58% of self-identified Democrats said they had “hardly any confidence at all” in the Supreme Court. (By contrast, only 18% of self-identified Republicans said the same.)

Yet widespread Democratic opposition has not hardened into support for expanding the court.

Sixty-three House Democrats signed on as co-sponsors of the Judiciary Act of 2023, only five more that did so in 2021. A similar proposal by Sen. Ed Markey (D-MA) has two co-sponsors in the chamber. Nearly all Democratic supporters — like Espaillat, whose district Joe Biden carried with 88% of the vote four years ago, making it one of the most Democratic in the country — hail from the party’s progressive wing.

The Biden administration has kept legislative efforts to expand the court at arm’s length. When Biden announced his backing for a commission to examine the court’s structure, he volunteered that he opposed “packing the court,” a reference to President Franklin D. Roosevelt’s failed attempt in 1937 to add a new justice each time a sitting justice turned 70 years old and failed to retire after six months.

The Presidential Commission on the Supreme Court of the United States, a 34-member panel Biden created in 2021, was no less welcoming. It avoided taking a position on expanding the court. “Mirroring the broader public debate, there is profound disagreement among commissioners on these issues,” its report said.

Indeed, not a single Hill Republican has signed on as a co-sponsor of the Democratic bills to add more justices to the high court. “It’s dangerous,” Rep. Glenn Grothman (R-WI) said in an interview. “Democrats are trying to use extra-constitutional means to change the government. When I was a child in school, we were taught that FDR’s attempt to pack the Supreme Court was terrible.”

Sen. J.D. Vance (R-OH), Trump’s vice presidential running mate, cast doubt even on a successful effort by Democrats to expand the high court. “Once they lose control in Washington, Republicans will increase the number of justices to 200,” he said in a Capitol Hill interview days before Trump, the 2024 Republican presidential nominee, tapped him for the GOP ticket.

With little support to expand the high court, Democrats are considering alternative legislative fixes.

On July 8, Senate Majority Leader Chuck Schumer (D-NY) said he plans to unveil a proposal that would define Trump’s efforts to overturn the results of the 2020 election as unofficial acts subject to prosecution. “We’re doing this because we believe that in America, no president should be free to overturn an election against the will of the people, no matter what the conservative justices may believe,” Schumer said.

Democrats have proposed less ideologically loaded legislation as well.

Last year, Sen. Sheldon Whitehouse (D-RI) introduced a bill that would require the high court to adopt rules for their justices and law clerks to disclose income, gifts, and income “at least as rigorous” as those of the House and Senate. Forty-three of his Democratic colleagues signed on as co-sponsors of the Supreme Court Ethics, Recusal, and Transparency Act of 2023. Unlike the House and Senate bills to expand the Supreme Court, Whitehouse’s legislation has added significant support after it was introduced.

The first Democrat to sign up was Sen. Richard Blumenthal (D-CT), a member of the Senate Judiciary Committee. In an interview on July 11, Blumenthal said expanding the Supreme Court is a bridge too far. “We need to reform and restore confidence in the court first,” he said. “There should be a code of ethics and rules that the justices abide by.”

Democrats are incensed by the coziness that two conservative justices, Clarence Thomas and Samuel Alito, showed toward wealthy patrons. Few mention that as the Associated Press reported last year, taxpayer-funded court staff for progressive Justice Sonia Sotomayor prodded colleges and libraries to buy her memoir and children’s books.

The justices are publicly unaccountable for a reason. The high court lacks a code of conduct, allowing justices to write their own rules. By framing the Supreme Court’s woes in institutional rather than ideological terms, Blumenthal said Congress may be able to address them. “What’s happened now is more Americans don’t have faith in the institution,” he said, “and that’s sad.”

Mark Stricherz is a reporter and writer in Washington, D.C.