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A new bill would add 4 seats to the Supreme Court

It’s on!

Merrick Garland stands at a lectern. Vice President Joe Biden stands with his hand on Garland’s shoulder. President Barack Obama stands on Garland’s other side.
Judge Merrick Garland at the announcement of his nomination to the US Supreme Court, in the Rose Garden at the White House in Washington, DC, on March 16, 2016.
Nicholas Kamm/AFP via Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

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.

The new court-expansion bill would effectively neutralize a half-decade of work by Republicans to manipulate the Senate confirmation process in order to ensure GOP control of the nation’s highest Court.

In February of 2016, Justice Antonin Scalia died. In response, Senate Republicans refused to give President Obama’s nominee to fill that seat, now-Attorney General Merrick Garland, a confirmation hearing or a floor vote.

To justify this decision, Republicans invented a new rule, claiming that it is not appropriate to confirm a Supreme Court nominee in a presidential election year. Prior to 2016, there had been seven election-year confirmations since the beginning of the 20th century, including the confirmation of Justice Anthony Kennedy in 1988.

The vacant seat was eventually filled by conservative Justice Neil Gorsuch after President Trump took office in 2017.

Then Justice Ruth Bader Ginsburg died in September of 2020. Republicans immediately abandoned the rule they invented to justify blocking Garland’s confirmation and confirmed Trump nominee Amy Coney Barrett just eight days before the 2020 election, which Trump lost.

It’s worth noting, moreover, that Trump lost the popular vote by nearly 3 million ballots in 2016. And, while Republicans controlled the Senate for Trump’s entire presidency, they only controlled it because the Senate is malapportioned to effectively give extra seats to small states.

Throughout Trump’s presidency, the Democratic “minority” in the Senate represented millions more Americans than the Republican “majority.” And all three of Trump’s appointees to the Supreme Court — Gorsuch, Barrett, and Justice Brett Kavanaugh — were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.

So legislation adding seats to the Supreme Court would give Democrats control of a body that they rightfully would already control if the United States chose presidents and senators in free and fair elections where each citizen’s vote counted equally.

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