Sen. Ed Markey, a Democrat from Massachusetts, recently introduced a bill called the Judiciary Act to expand the Supreme Court.
Smith told the Minneapolis CBS affiliate, WCCO-TV:
“Republicans have been working to politicize the U.S. Supreme Court for forty years, with the help of dark money and the Federalist Society. With Donald Trump’s help, they stole two seats, ensuring an ultra-conservative Court that is drastically out of step with the American people.”
A very similar message was sent by Markey himself in a news release accompanying the bill:
“Republicans stole the Court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” he said. “Of all the damage Donald Trump did to our democracy, 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.
“The Judiciary Act will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary.”
Nowhere does the Constitution specify that the Supreme Court needs to have nine justices. In fact, the court has not always been composed of nine justices.
This excellent 2019 essay in the Harvard Law and Policy Review explains that not mandating an exact number of justices for the Supreme Court may have been superb political foresight. Leaving this as a matter for Congress acts in a practical sense as a political check on the judiciary — a key one in our set of checks and balances of governmental power.
The essay also sets forth the different ways the court can legally be expanded or contracted, one of which happened today with the introduction of the bill at issue.
The essay goes on to explain that the court has expanded or shrunk in size seven times throughout its history, often for overtly political ends. The court shrunk from six to five in 1801, expanded to six then quickly seven in 1807, and moved up from seven to nine in 1837.
From that point forward, modifying the size of the court became as deeply partisan an issue as it is today.
Congress today should be learning from the past two partisan debacles, led by Presidents Ulysses S. Grant and Franklin Roosevelt. While the former packed the court to have it overturn a currency validity issue, the latter effectively countered the court’s anti-New Deal rulings.
While there are members of Congress, the judiciary, the media and the general public who will surely embrace the Judiciary Act and the political messaging around it, there is an even more compelling argument to be made against the bill and against expanding the Supreme Court.
From a practical perspective, the court works just fine, thank you. Partisan rhetoric aside, there is absolutely no functional problem with a Supreme Court of nine justices today.
Even when viewed through the lens of the court’s succession planning, nine is a number that works extremely well, as we have seen over the past half-century.
There has never been a time where deaths and retirements have come too close together to create a court too inexperienced. There is almost always the right balance of experience on a nine-person Supreme Court.
With public opinion of the Supreme Court today at an all-time low, rather than playing infantile political games and seeking to expand the size of the court, what the Democrats can do is stop being kittens and show some claws for once.
And the first target of their claws should be aimed internally at Justice Stephen Breyer, who is running out of months to announce his retirement if the Democrats want to be assured of a liberal replacement for this liberal jurist.
It is in this light that we need to see the introduction of the Judiciary Act. It is partisan politics at its most extreme, seeking to change the size of the Supreme Court to alter its orientation. Yet we understand why this is being done, as the reality check for Democrats is right in front of their faces.
If they think the current 6-3 conservative majority is bad, their options at 7-2 will look markedly worse.
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