Congressional Democrats unveiled legislation on Thursday aimed at expanding the number of justices on the Supreme Court. The bill, introduced by Senator Ed Markey (D-Mass.) and Congressman Jerry Nadler (D-N.Y.), and cosponsored by House Democrats Hank Johnson and Mondaire Jones, would swell the number of justices from its current nine to 13, adding four seats to the nation’s highest court. The bill arrived precisely one week after President Biden announced the formation of a commission to study adding seats to the court—and one day before that commission’s first meeting—and can, in many ways, be seen a direct response to the failure of that committee to impress anybody besides the Federalist Society.
Biden has thus far ignored the bill. Speaker of the House Nancy Pelosi did him one better and shot it down immediately. She indicated to reporters that she would not allow it to come to the House floor for a vote.
The cleavage between Democrats who want to do something about the conservative takeover of the courts and those who do not couldn’t be any deeper—or clearer. On one side, you have a group of people who have seen how Mitch McConnell and the Republicans have manipulated the court: stealing a seat from Barack Obama to appoint Neil Gorsuch, confirming alleged attempted rapist Brett Kavanaugh, and rushing to confirm Amy Coney Barrett after the 2020 election had already started. These Democrats are sick and tired of being stomped on by Republicans willing to use raw political power to reshape the very definition of justice in this country; now that they have power, they simply want to use it to defend the people who voted for them.
But these Democrats, the ones who want to aggressively reshape the courts to counter what Republicans have already done, are constantly having to fight internal battles against other Democrats who want… well, I don’t know what they want. The Democrats who are against court reform are for nothing. They don’t have a different, more incremental, less radical plan to address long-term Republican control of the courts; they have no plan at all. They offer only acceptance of the ill-gotten Republican gains on the court. They propose simply hugging it out with Republicans (literally) and counsel only fear of what Republicans will do should Democrats take any protective action. In response to Republicans’ stealing their lunch money, the Democratic leadership’s solution is to get used to being hungry.
I’d love to critique Pelosi’s policies on Supreme Court reform, but she offers me none to critique. She promised, when Democrats were trying to take back the House in 2018, that she’d launch an investigation into the many ethical complaints about Kavanaugh, but she has done nothing to bring him to justice. Upon Barrett’s confirmation, she said, “The President’s Supreme Court manipulation threatens the very values and rights that define and distinguish our nation.” But she rejects an opportunity to counteract that manipulation out of hand, without even bothering to tell people why. The establishment wing of the Democratic Party seems to be practicing the most cynical form of politics: They want to complain about the issue, not solve the problem.
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Indeed, a principled reason to object to the proposed legislation is not “Mitch McConnell is too powerful” but that the proposal isn’t big enough to undo McConnell’s damage. Adding four justices is great, but we should add at least 10. Adding a few justices smells of (entirely justified) retribution against Republicans for their theft; adding a lot of justices points the way toward reforming and depoliticizing the entire court.
Unfortunately, that’s not the argument Pelosi is making, because the Democratic leadership isn’t standing on principle here. They offer no cherished belief or value system beyond tradition and some hokey numerology about the number “nine.” Refusing to reform something broken simply because it has been broken for a long time is the kind of intellectually weak and lazy argument usually made by conservatives. It’s an unacceptable position from the allegedly left-of-center party.
Absent a credible reason for why total Republican capture of the courts is good for the country—or the women, people of color, and LGBTQ communities directly threatened by those Republican courts—I’m left to conclude that Pelosi and other anti-reform Democrats are only motivated by fear.
As usual, Democrats seem more concerned with pissing off the deplorable assortment of racists and misogynists who vote for Republicans than they are with protecting the people who actually vote for Democrats. I get it. Republican voters have a proven track record of showing up to vote for candidates who promise to appoint fire-breathing conservative judges who then deliver Republican victories in the culture wars. Meanwhile, no Democrat has ever lost a primary for being soft on the courts. Even in this last presidential primary, when Biden was easily the weakest contender when it came to reforming the courts, he won in a walk.
But this time, the normal Democratic Party unwillingness to fight for the Supreme Court is entirely self-defeating. Republicans have made it clear that they never intend to allow this country to hold a free and fair election again. Without courts that are willing to enforce the 15th Amendment and prevent Republican state governments from suppressing or outright discarding the Black vote, nothing the Democrats say or do will matter. Controlling the Supreme Court is not a euphemism for abortion rights or a proxy battle over gun reform: It’s officially the only way to secure democracy.
The Supreme Court must be expanded to include enough justices to secure voting rights. That should be a nonnegotiable position for Democrats, whether they do it because it’s the right thing to do or out of a basic interest in self-preservation. We should be fighting over how many additional justices we need to perform that vital work, not whether the future of Black voting rights should rest in the hands of Kavanaugh and Barrett.
For Democratic leadership to dismiss court reform proposals out of hand, for Biden to punt the issue to a committee that doesn’t include any court reformers, is just asinine. It’s worse than political malpractice. It’s suicide.
