Wearing dark suit and sunglasses reminiscent of a character in The Matrix, Brian Fallon pointed a finger at the gleaming US Capitol building to his left, then to the marble edifice of the supreme court to his right.
“If you look at any point in the last 40 years, Congress’s public approval always hovers around 10%,” said Fallon, a former justice department official who worked for Hillary Clinton’s 2016 presidential campaign. “But the [supreme] court’s is now in the 30s and that’s a historical anomaly because there’s always at least been the benefit of the doubt conferred upon the court.”
There is no better symbol of the crisis of trust in American institutions than its highest court, pummeled by partisan appointments, divisive rulings and ethical scandals. In a University of Chicago survey last year just 18% of Americans said they had a great deal of confidence in the supreme court – the lowest in half a century.
Congressional Democrats and allies such as Fallon, now head of the pressure group Demand Justice, believe that they have a solution: expand the court by adding four seats to counter a rightward tilt during the Donald Trump administration that, they say, put it out of step with mainstream public opinion.
This week a group including Senators Ed Markey, Tina Smith and Elizabeth Warren, and representatives Jerrold Nadler, Hank Johnson, Cori Bush and Adam Schiff announced the reintroduction of legislation that would create a 13-justice bench.
At a press conference in front of the supreme court steps, surrounded by activists holding “Expand the court” signs as tourists and school groups wandered by, they pointed out that, while Democrats gained more votes in seven of the last eight presidential elections and represent 40 million more people in the Senate, Republicans have appointed 15 of the last 19 justices.
These two “stolen” seats, the group argues, after Republicans blocked the confirmation of President Barack Obama’s nominee Merrick Garland in 2016 only to ram through the confirmation of Amy Coney Barrett 10 days before the 2020 election, even as millions of votes were being cast for Joe Biden.
Now, Markey said, it is time to “fix this broken and illegitimate court” with a forceful response. He said: “When a bully steals your lunch money in the schoolyard, you have to do something about it, or else the bully will come back over and over again,” he said. “So we’re in this fight, and we’re going to reclaim these seats. We’re not going to allow the bully to win.”
The Massachusetts senator also called for the resignation of Justice Clarence Thomas over his failure disclose gifts provided by the billionaire Republican donor Harlan Crow and his wife Ginni’s more than $680,000 in unreported income from the Heritage Foundation, a conservative thinktank. “We’ve got to remind him that we have a system of constitutional checks and balances, not cheques or balances.”
The speakers argued that, given recent decisions on abortion rights, voting rights, gun control measures and environmental regulations, the supreme court is beholden to rightwing special interests and facing a crisis of legitimacy.
Schiff, a congressman from California, said: “This is not a conservative court, not in a legal sense. A conservative court would have some respect for precedent. This is instead a political and partisan court with a reactionary social agenda and the only question, Mitch McConnell having packed the court, is will we do anything about it or will we subject an entire generation of Americans to the loss of their rights?
“Dirtier air and dirtier water and dirtier elections? Is that the fate we would have for the next generation? My kids are both in their early 20 and I am not satisfied that they should have to live under a reactionary supreme court for their entire adult lives and I don’t want anyone else’s kids to have to suffer that fate.”
The legislative effort was first launched two years ago but this time it is backed by Planned Parenthood and Naral Pro-Choice America, spurred by the court’s decision last year to overturn the constitutional right to abortion after nearly 50 years.
Jacqueline Ayers, senior vice-president of policy, campaigns and advocacy at the Planned Parenthood Federation of America, noted that 19 states have since moved to ban the procedure. “The moment is calling for us to realise that it’s necessary that we have fairness, that we have balance in our supreme court,” she said. “The bottom line is the courts are being used as a weapon to take away our rights.”
Congress has added and removed seats on the supreme seven times throughout its history – though the most recent example goes all the way back to the presidency of Ulysses S Grant in 1869. Supporters also contend that 13 is not an arbitrary number but based on sound logic: it would mean one justice per circuit court of appeals, consistent with how the number of justices was originally determined.
But they face an uphill battle to persuade Biden and other senior Democrats to put the issue front and centre of next year’s election campaign. In 2021 a report by the president’s supreme court reform commission suggested that “court packing” would be a cure that is worse than the disease, citing autocrats using it to shore up power in Argentina, Venezuela, Turkey, Hungary and Poland.
Biden, who hangs a portrait of Franklin Roosevelt in the Oval Office, may also be wary of what happened when the 32nd president, up against a supreme court that ruled parts of his New Deal unconstitutional, floated a plan in 1937 that could have expanded the bench to 15 seats. It was unpopular with the public and failed to clear the Senate.
Bill Galston, a former policy adviser to President Bill Clinton, said: “I don’t think the Biden White House are going to walk down that road during a presidential election. You don’t need to know a lot of American history to remember what happened the last time a president tried to do this – that was a president at the very peak of his popularity and no one can say that President Biden is at the very peak of his.”
Galston, a senior fellow at the Brookings Institution thinktank in Washington, added: “The general Democratic narrative is that Republicans are trying to change the rules to their advantage and a White House-led effort to expand or, as the Republicans would say, instantly pack the supreme court would blow up that narrative and create a new centre of attention with the Democrats on the defensive.”
Conservatives would indeed cry foul at any such proposal and accuse Democrats of hypocrisy. Curt Levey, president of the advocacy group Committee for Justice, said: “If you could just add seats every time one party controls both Congress and the presidency then the supreme court would reflect whatever party was in power at the time and it would be a completely politicised supreme court. It would be very dangerous.”
He added: “It strikes me that the Democrats are sore losers here. You had a liberal activist supreme court arguably from 1937 to as late as 2015 and during that entire 80-year period Republicans did not call for packing the court and they did not question the court’s legitimacy. They complained about the court’s decisions but they really never tried to undermine the court.
“It’s only been three years since Barrett was appointed and there was a real conservative majority in the court and the Democrats just can’t stand it. They have used the court to implement their agenda for so many decades that the idea that they’ve lost that is just driving them crazy.”
Democrats contend, however, that in recent years Republican dominated state legislatures have been content to expand the number of seats on their states’ respective supreme courts.
The national effort has a new sense of momentum with the backing of dozens of civil liberties, education, climate and labour organisations, while last year’s midterm elections showed the political potency of abortion rights. Fallon described the presence of Planned Parenthood and Naral this week as “a gamechanger”.
Acknowledging that Biden will be “one of the last dominoes to fall”, Fallon predicted that supreme court expansion could be on the agenda for Democrats in next year’s congressional elections, for example in Senate primary races in California and Maryland and in House races in New York and Los Angeles.
He said in an interview: “If you want to be a Democratic candidate speaking to that outrage, if you want to mobilise those voters upset about rulings that come out of the court on reproductive rights, now you need to have this as part of your arsenal and what you’re going to promise in terms of what you’ll support when you get to Washington.
“It might not be on the timeline of Joe Biden in 2024 but certainly in 2028, when there’s another open contested presidential primary, I would expect by then that every candidate has to be for it.”
This article was amended on 21 May 2023 to replace an incorrect photograph of Ed Markey.
