By Ian Millhiser Apr 14, 2021, 9:00pm EDT
Four Democratic members of Congress plan to introduce legislation that would add four seats to the Supreme Court, which would, if passed, allow President Biden to immediately name four individuals to fill those seats and give Democrats a 7-6 majority.
The bill, which is being introduced by Reps. Jerrold Nadler (D-NY), Hank Johnson (D-GA), and Mondaire Jones (D-NY) in the House and by Sen. Ed Markey (D-MA) in the Senate, is called the Judiciary Act of 2021, and it is very brief. It amends a provision of federal law providing that the Supreme Court consist of a chief justice and eight associate justices to read that the Court shall consist of ‘‘a Chief Justice of the United States and twelve associate justices, any eight of whom shall constitute a quorum.”
Although the Constitution provides that there must be a Supreme Court, it leaves the question of how many justices shall sit on that Court to Congress. Under the Judiciary Act of 1789, the Court originally had six seats, and it briefly had 10 seats under President Lincoln.
Realistically, the bill is unlikely to pass anytime soon. Until recently, adding seats to the Supreme Court was considered a very radical tactic — President Franklin Roosevelt proposed similar legislation in 1937, and it did not end well for him. President Biden has in the past expressed reluctance to add seats to the Court.
But the politics of Supreme Court reform have moved very quickly in recent years, and it’s possible to imagine a critical mass of lawmakers rallying behind Court expansion if a majority of the current justices hand down decisions that are likely to outrage Democrats, such as a decision neutralizing what remains of the Voting Rights Act.
People always say that FDR’s court-packing plan of 1937 did not end well for him, but it bullied the Supreme Court into finally approving his New Deal policies.
In general, threatening to pack can be a pretty effective tactic for getting the other side to give in: e.g., the Tory-dominated House of Lords kept vetoing the Liberal Party’s reforms before WWI until PM Asquith got King George V to agree to create over 400 new Liberal peers if the House of Lords didn’t vote to give up its permanent veto, which it then narrowly did.