Congressional Democrats Reintroduce Act to Add Supreme Court Justices

On May 16, 2023, the Judiciary Act was reintroduced by Senators Ed Markey (D-MA), Tina Smith (D-MN.), and Elizabeth Warren (D-MA.), and Representatives Jerrold Nadler (D-NY), Hank Johnson (D-GA), Cori Bush (D-MO), and Adam Schiff (D-CA).

The act is straightforward and would replace the text “a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum’’ in title 28 of the United States Code with “a Chief Justice of the United States and 12 associate justices, any 8 of whom shall constitute a quorum.” Thus, the bill would add four justices to the U.S. Supreme Court.

The congress people state: “The nation’s highest court today faces a crisis of legitimacy that began when Senate Republicans first abandoned norms and precedent to block the confirmation of then-President [Barack] Obama’s Supreme Court nominee, Merrick Garland, only to later ram through the confirmation of Amy Coney Barrett a mere 10 days before Election Day 2020, and while millions of Americans were already casting ballots.”

Representative Johnson explains, it’s easy to take for granted that the number of justices on the Supreme Court must be nine. But it is not written in the Constitution and has changed seven times over the course of our nation’s history…. Thirteen justices would mean one justice per circuit court of appeals, consistent with how the number of justices was originally determined, so each justice can oversee one circuit.”

Several organizations support the act, including: Planned Parenthood Federation of America, NARAL Pro-Choice America, Demand Justice, Take Back the Court Action Fund, Indivisible, Alliance for Justice, and League of Conservation Voters.

The bill, however, does not have much of a chance of passing the Republican-controlled House of Representatives and is likely to face opposition from those opposed to court packing.

Discussion Questions

1. Should packing the U.S. Supreme Court ever be considered? Why or why not?

2. Can adding four associate justices to the Supreme Court be defined as “court packing”? Explain your answer(s).

3. How many justices do you think the Supreme Court should have? Explain your answer(s).

Sources

Ed Markey, “Sen. Markey, Rep. Johnson Announce Legislation to Expand Supreme Court, Restore Its Legitimacy, alongside Sen. Smith, Reps. Bush and Schiff,” markey.senate.gov, May 16, 2023

Brett Wilkins, “Democrats in Congress Push to Add 4 New Justices to the Supreme Court,” salon.com, May 17, 2023