The Democrats’ Court-Packing Plan Doesn’t Make Any Sense

You can tell that House and Senate Democrats are serious about court-packing by the new bill’s name: the Judiciary Act of 2021. They didn’t burden it with an insufferable acronym, like the Judicial Upkeep, Democracy, Growth, and Expansion, or JUDGE, Act, or something pedantic like the Save Our Courts Act. By connecting it to previous Judiciary Acts that built and expanded the federal courts since 1789, Democrats are trying to suggest that there’s precedent and continuity to their proposal.

The Judiciary Act, which was announced by congressional Democrats on Thursday, is short and straightforward. It revises the section in federal law that says the Supreme Court has “a Chief Justice of the United States and eight associate justices” to say “a Chief Justice of the United States and twelve associate justices.” If it is enacted, President Joe Biden would be able to name four new justices to the high court. A 6–3 majority of Republican appointees would become a 7–6 majority of Democratic appointees. It’s easy to understand why some Democrats favor the bill. But their strategy to get it passed, let alone to solve the actual problems at hand, is not so clear.

Let’s start with the obvious: The Judiciary Act won’t become law. Speaker Nancy Pelosi told reporters on Thursday morning that she has “no plans” to bring the bill to the floor. And the House isn’t even the biggest problem. West Virginia Senator Joe Manchin, the Senate’s de facto swing vote, stated outright last November that he wouldn’t vote to expand the court. He is also opposed to scrapping the filibuster to pass any legislation, let alone this bill. And there is no chance that one Republican senator, let alone 10 of them, will vote for it.

Some of the bill’s sponsors, like Representatives Jerry Nadler and Hank Johnson, claim they are belatedly following the nineteenth-century tradition of adding a Supreme Court seat for every new federal circuit court of appeals. “Nine justices may have made sense in the nineteenth century when there were only nine circuits,” Nadler said in a statement, “and many of our most important federal laws—covering everything from civil rights to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court. But the logic behind having only nine justices is much weaker today, when there are 13 circuits.”

Others are unambiguous about their partisan goals. “Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Massachusetts Senator Ed Markey, one of the bill’s sponsors, said in a statement. “Of all the damage Donald Trump did to our Constitution, this stands as one of his greatest travesties. Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities. This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”