Democrats to introduce bill to expand Supreme Court from 9 to 13 justices

President Joe Biden announced the formation of a commission last week to study the court's structure, including the number of justices and their length of service.


WASHINGTON — Congressional Democrats will introduce legislation Thursday to expand the Supreme Court from nine to 13 justices, joining progressive activists pushing to transform the court.

The move intensifies a high-stakes ideological fight over the future of the court after President Donald Trump and Republicans appointed three conservative justices in four years, including one who was confirmed days before the 2020 election.

The Democratic bill is led by Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York, the chair of the House Judiciary Committee. It is co-sponsored by Reps. Hank Johnson of Georgia and Mondaire Jones of New York.

The Supreme Court can be expanded by an act of Congress, but the legislation is highly unlikely to become law in the near future given Democrats' slim majorities, which include scores of lawmakers who are not on board with the idea. President Joe Biden has said he is "not a fan" of packing the court.

House Speaker Nancy Pelosi, D-Calif., told reporters on Thursday she has "no plans to bring it to the floor."

"I don't know that that's a good idea or bad idea. I think it's an idea that should be considered," she said of the court expansion plan. "And I think the president's taking the right approach to have a commission to study such a thing. It's a big step."

The push represents an undercurrent of progressive fury at Senate Minority Leader Mitch McConnell, R-Ky., for denying a vote in 2016 to President Barack Obama's pick to fill a vacancy, citing the approaching election, before confirming Trump nominee Amy Coney Barrett the week before the election last year.

The anger has taken hold within the Democratic Party, and the new push indicates that it has not dissipated in an era when the party controls the White House and both chambers of Congress.

The lawmakers, who intend to announce the introduction of the bill outside the Supreme Court building, will be joined by progressive activists Aaron Belkin, who leads Take Back the Court; Chris Kang, a co-founder and chief counsel of Demand Justice; and Meagan Hatcher-Mays of Indivisible, according to an advisory notice. All three groups advocate adding justices.

"This bill marks a new era where Democrats finally stop conceding the Supreme Court to Republicans," said Brian Fallon, a former Senate Democratic leadership aide and a co-founder of Demand Justice, who described the court as "broken and in need of reform."

"Our task now is to build a grassroots movement that puts pressure on every Democrat in Congress to support this legislation because it is the only way to restore balance to the court and protect our democracy," he said.

But numerous top Democrats aren't embracing the proposal.

Sen. Sheldon Whitehouse, D-R.I., a senior member of the Judiciary Committee, told NBC News that it will be "important for us to make our case to the American people as to why this is necessary," and that he doesn't want to "put the cart ahead of the horse" on adding seats.

"There's been a lot of manipulation and I think it's put the court in a very perilous position, and we need to remedy the problems that McConnell caused," he said on Thursday.

Last week, Biden announced the formation of a commission of liberals and conservatives to study the structure of the Supreme Court, including the number of justices and the length of their service.

Senate Majority Whip Dick Durbin, D-Ill., who chairs the Judiciary Committee, said he's "concerned" about McConnell's tactics to "control the future of the court" but wants to make sure Democrats respond reasonably.

"I'm not ready to sign on yet. I think this commission of Biden is the right move," Durbin told reporters. "Let's think this through carefully. This is historic."

The size of the Supreme Court, which has fluctuated since it was established in 1789, has remained at nine since 1869.

McConnell has strenuously warned Democrats not to add seats to the court, saying there is "nothing about the structure or operation of the judicial branch that requires 'study.'"

He quoted remarks from Justice Ruth Bader Ginsburg, who died in September, and liberal Justice Stephen Breyer, both of whom voiced skepticism about expanding the court.

"President Biden campaigned on a promise of lowering the temperature and uniting a divided nation," McConnell said in a statement last week. "If he really meant it, he would stop giving oxygen to a dangerous, antiquated idea and stand up to the partisans hawking it."