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Pelosi, Durbin Balk at Effort to Expand U.S. Supreme Court (2)

April 15, 2021, 3:21 PM; Updated: April 15, 2021, 3:56 PM

Legislation expanding the size of the U.S. Supreme Court backed by progressives is getting a chilly reception from Democratic leaders in both chambers.

The bill unveiled Thursday would add four justices amid pressure from progressives who see expansion as a way to dilute the power of the 6-3 conservative majority.

“This legislation will restore the court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it,” Sen. Ed Markey (D-Mass), who is sponsoring the Senate version, said in a statement.

Democratic leaders in the House and Senate struck a cautious tone and said they wanted to first hear recommendations from a commission recently appointed by President Joe Biden to study potential changes to the Supreme Court.

House Speaker Nancy Pelosi (D-Calif.) told reporters Thursday that she has no plans to bring the bill to the floor for a vote, while adding that expanding the court is “not out of the question.”

“I don’t know that that’s a good idea or bad idea,” Pelosi said. “I think it’s an idea that should be considered, and I think the president’s taking the right approach to have a commission to study such a thing.”

Senate Judiciary Committee Chair Dick Durbin (D-Ill.) also told reporters Thursday that he’s “not ready to sign on yet” and he hasn’t decided whether to bring the bill up for a committee vote.

Durbin said he wants to first hear recommendations from the commission appointed April 9 by Biden that will study a wide range of potential changes to the Supreme Court, including expansion.

Biden initially promised on the campaign trail to create such a commission amid calls from progressives to commit to expansion. The announcement, however, was seen as dodging a direct answer.

Rebalancing Court

Supporters of court expansion say that adding seats is needed to restore balance on the court after President Donald Trump’s three conservative appointments.

“Our democracy is hanging by a thread. And the far-right majority on the U.S. Supreme Court is cutting it,” Rep. Mondaire Jones (D-N.Y.) said in a statement.

While there was much excitement among Democrats and progressives about the introduction of the bill, it would face particularly difficult prospects in the Senate as long as the filibuster remains in place.

The 60-vote threshold has the backing of moderate Democrats, like Sen. Joe Manchin (D-W.Va.), whose support is key for Democrats to eliminate the practice in the narrowly divided chamber.

Asked about Pelosi’s comments at an event on the steps of the Supreme Court announcing the bill, Markey said it’s “imperative” that Democrats introduce this legislation and start the conversation.

“We begin this discussion today, but it does not end here,” he said.

‘Nothing New’

House Judiciary Committee Chair Jerrold Nadler (D-N.Y.) noted the Supreme Court’s size has changed before and the the power to alter it rests with Congress.

“There’s nothing new about changing the size of the Supreme Court,” Nadler said.

There have been nine justices since 1869, with the number tied to the number of circuit courts at the time.

“The logic behind having only nine justices is much weaker today when there are 13 circuit courts, thousands of cases filed before the court each year, and the full range of statutes and regulations that make our economy and our society work,” Nadler said.

Hank Johnson (D-Ga.), who chairs the House Judiciary’s courts subcommittee, said he hopes adding justices will allow the Supreme Court to hear more cases.

“There is an enormous disparity in the cases heard by the courts of appeals and the Supreme Court,” Johnson said. Courts of appeals in 2019 decided more than 50,000 appeals. The Supreme Court, by contrast, handled fewer than 100 cases in recent years, he said.

“This disparity means that getting a case in front of the Supreme Court starts to resemble winning the lottery,” Johnson said.

Justice Opposition

Republicans strongly criticized the proposal and pointed to statements made by Justice Stephen Breyer and the late Justice Ruth Bader Ginsburg that cautioned against expanding the size of the court.

Breyer warned that court-packing could erode public trust in the court during an April 6 speech at Harvard Law School. And Ginsburg told NPR in 2019 “nine seems to be a good number.”

“I cannot say it better than two members of the liberal bloc on the court,” Sen. Lindsey Graham (R-S.C.), a former Judiciary Committee chair, said in a statement referencing their comments.

Packing the court would politicize it, Sen. Chuck Grassley (R-Iowa) said in a Thursday tweetwhere he also referenced the statements from the justices.

“This isn’t just a Republican position,” said Grassley, who’s a former Judiciary Committee chair and currently its top Republican member.

(Updates with additional reporting throughout.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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