House Democrats Revive Their Court-Packing Push
Adding progressive justices to the bench would eventually backfire.
On Monday, eight House Democrats held a press conference on the Capitol steps to advocate for a court-packing scheme that would expand the number of U.S. Supreme Court justices from nice to 13, thus allowing President Biden to add four more judges to the court. Four more judges, it just so happens, is exactly the number Democrats need to overturn the Court's current 6-3 conservative majority.
The announcement comes in the wake of several Supreme Court decisions that have angered Democratic lawmakers and progressive activists. "Weeks after schoolchildren were massacred in Texas, they took away protections against gun violence," said Sara Lipton, the executive director of Take Back the Court Action Fund during Monday's press conference. "During the hottest summer on record, they made it harder for the EPA to combat climate change. And in a year where state houses across the country pushed hateful anti-trans legislation, the court eviscerated the boundary between church and state, opening the door to discrimination and violence."
Rep. Hank Johnson Jr. (D–Ga.) and the other speakers called for the passage of the court-packing Judiciary Act of 2021, which would expand the court to 13 justices. Johnson, a sponsor of the bill, said at the press conference that conservative Justice Clarence Thomas is a "74-year-old spry individual who's getting to the point where he wants to wreak his havoc on Americans," and that "you can see the gleam in [Samuel Alito's] eye as he thinks about what he wants to do to decimate the rights of people and put us back into the Dark Ages."
Court-packing advocates seldom acknowledge the downsides of expansion. As Reason Senior Editor Damon Root wrote in February 2021, "Court packing is a naked power grab and an attack on the independence of the judiciary. It is a tit-for-tat race to the bottom. One party expands the size of the bench for nakedly partisan purposes, so the other party does the same (or worse) as soon as it gets the chance."
On Monday, Bill Scher argued in Washington Monthly that court-packing is unlikely to lead to long-term success for Democrats. "Once you can breezily change Court composition on a partisan basis, you no longer have an independent judiciary," he wrote. "In other words, court-packing doesn't secure reproductive freedom. Over the long term, it only locks us in our current predicament, where our rights are subject to the whims of the electorate."
President Biden has yet to support packing the court, something Root noted in a 2021 article. Whether he knows where adding justices would eventually lead, the reality is that Democrats in Congress can protect unenumerated rights by writing and passing legislation. In fact, considerable effort has been made on that front since the release of the Dobbs decision overturning Roe v. Wade. Trying to pack the Supreme Court is both a bad idea and a distraction.