When four liberal lawmakers came to the steps of the U.S. Supreme Court on Thursday to roll out legislation to add seats to the high court, they may have had the base of the Democratic Party strongly behind them, but their party leaders across the street in the Capitol—and many of their colleagues—might as well have been residing in a different political universe.
Just before Sen. Ed Markey (D-MA), the lead Senate sponsor of the bill to pack the court, took the microphone outside the Supreme Court, Speaker Nancy Pelosi (D-CA) told reporters at her weekly press conference that it was going nowhere fast.
“I have no intention to bring it to the floor,” she said.
Later that afternoon, Rep. Hakeem Jeffries (D-NY), the chair of the House Democratic Caucus and a senior member of the House Judiciary Committee, said the party’s leadership team hadn’t discussed the legislation—at all.
“I haven't heard too much about it one way or the other,” Jeffries, who has not taken a position on adding seats, told The Daily Beast. “No one within the Democratic caucus has said anything to me about it yet... We just had a leadership meeting, and this didn’t come up.”
Top Democrats surely know, however, that among many of their voters, this issue is hardly an afterthought. In four years, Donald Trump shifted the high court to the right with three successful confirmations. And with every addition, Democratic support grew for adding seats to the bench.
Now that Democrats have control over the White House, House and Senate, liberals say it’s time to act. The leaders of the push—Judiciary Chairman Jerry Nadler (D-NY), Sen. Markey, Rep. Mondaire Jones (D-NY), and Rep. Hank Johnson (D-GA)—acknowledged this was just the first step in a potentially long but existentially important campaign. But the imprimatur of Nadler made Thursday’s first step more forceful.
“I wish we did not have to stand here today,” said Jones, a freshman progressive, at the press conference. “I wish we didn't have a far-right Supreme Court majority that is hostile to democracy itself. But here we are. And the fact is, if we want to save our democracy, we must act before it is too late by restoring balance to the Supreme Court.”
Among a broad swath of Democrats, though, this push is seen as politically toxic—especially for the swing-district lawmakers who will determine whether the party retains its House majority in 2022.
Up until now, those frontline Democrats could keep their distance from the court debates, which were historically the purview of the Senate. But the introduction of this bill on court-packing now puts them on the spot on this touchy issue—and Republicans are all too happy to exploit that development.
Conservative politicians and media buzzed with Thursday’s press conference. Fox News aired it live. And House GOP leader Kevin McCarthy (R-CA) made special note of the press conference during his weekly press conference, saying the idea “should scare every American.”
“They didn’t have to make it this big push,” a senior House Republican aide told The Daily Beast. “The outrage is justifiable, especially after the last four years, after they said we were trampling on norms—now they’re trying to add seats to the Supreme Court. It’s something we’re going to make every one of their members own.”
President Joe Biden, who has avoided taking a clear position on court expansion, moved to create a commission to “study” the issue further. Republicans intend to use this to put pressure on him, too.
“Nothing symbolizes liberal overreach more than packing the court,” said a senior Senate GOP aide. “The American people recoil at the idea. It was too radical during Franklin Delano Roosevelt’s presidency, and if Joe Biden wants to maintain any claim of being a moderate he ought to shoot this down immediately.”
In the early days of Biden’s presidency, Democrats have confronted a challenge of taking control of Washington’s levers of power: reconciling the pent-up demands of their party base with what is politically possible. Biden and congressional leaders have satisfied progressives so far with a sweeping COVID relief plan and its dramatic expansion of the social safety net, and the infrastructure plan’s early designs on climate policy are promising to them as well.
Proponents of court expansion know that, in order to pass the bill, they would need to eliminate the Senate’s 60-vote threshold for making laws. There is increased Democratic support for that, but what’s pushing them there isn’t necessarily a desire to expand the court; it’s a fresh urgency to expand voting rights.
The issue’s place on the liberal back burner is notable, given how much space it has taken up in Democrats’ recent debates. During the 2020 presidential primary, Democratic hopefuls faced pressure to back the idea—or at least not reject it outright. That bar was cleared by several top candidates, such as Sen. Elizabeth Warren (D-MA) and now-Vice President Kamala Harris. A New York Times poll from October, when Trump and Senate Republicans rushed to confirm Amy Coney Barrett before the 2020 election, found that 57 percent of Democrats nationwide backed court expansion.
But Jones, who was elected the 2020 freshman class’ representative to House leadership, said that “it’s safe to presume we begin this process with the vast majority of Democratic members of the House being supportive of reforms to the Supreme Court.”
“Now,” Jones said, “we've got to get them to a place where they would agree to co-sponsor this legislation and vote for it, and that needs to take place before we even have discussions about whether there will be a floor vote on Supreme Court expansion.”
Other Democrats do favor some court reforms, like term limits for justices, and most believe that Republicans dealt the most lethal blow to court norms by eliminating the 60-vote threshold to confirm high court nominees. Still, most are far from ready to support adding seats to the bench. A senior House Democrat, Rep. Carolyn Maloney (D-NY), backed the legislation in a Thursday tweet, but there was hardly a rush to get on the bandwagon.
One of the party’s most outspoken moderates, Rep. Conor Lamb (D-PA), plainly said he was going to ignore the legislation.
“There's just a lot of things we're working on right now that actually have a chance of getting done now that Biden is president, and I don't think that's one of them,” Lamb told The Daily Beast. “So I really mean it when I say I'm just not going to devote thought to it.”
Jones dismissed the idea that Democrats would face real political ramifications for the push, arguing it would be key to ensuring their popular policies withstand a legal assault from conservatives.
“People are not going to be losing elections over an effort to make sure that everyone has the right to vote in this country,” said Jones, “to make sure that we can continue to have the Affordable Care Act, which is deeply popular with the American people, and which the Supreme Court has been dismantling and a series of decisions over the past decade.”
But the bill’s proponents acknowledge they have some selling to do, too, and they believe that politics will do some of that work for them. Asked about Pelosi’s opposition to bringing the bill to the floor, Nadler emphasized that the speaker didn’t rule out the idea altogether.
“Speaker Pelosi is a very good judge of events, and of history,” said Nadler. “And I believe that as events unfold and the court comes down with decisions obstructive of a woman’s right to choose, as they come down with decisions obstructive to the climate, as they come down with decisions obstructive to civil liberties, I believe that Speaker Pelosi and others will come along.”