Democratic support for SCOTUS expansion grows after leak

Protesters are seen outside the Supreme Court on Tuesday, May 3, 2022 after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year.
Greg Nash
Protesters are seen outside the Supreme Court on Tuesday, May 3, 2022 after the leak of a draft majority opinion written by Justice Samuel Alito preparing for the court to overturn Roe v. Wade later this year.

Support for a bill to expand the Supreme Court has ticked up among House Democrats in the aftermath of a leaked opinion that would overturn Roe v. Wade becoming public. 

Since the leak, the Judiciary Act of 2021 has picked up support from five more Democrats. The one-sentence bill would expand the Supreme Court from nine members to 13.

In the last week, Democratic Reps. Brendan Boyle (Pa.), Nanette Diaz Barragán (Calif.), David Cicilline (R.I.), Jimmy Gomez (Calif.), and Mark DeSaulnier (Calif.) have added their names to the legislation, bringing the total number of bill sponsors to at least 56.

Democratic Reps. Hank Johnson (Ga.), Jerry Nadler (N.Y.) and Mondaire Jones (N.Y.) introduced the bill in April 2021. The pace of new sponsorships significantly slowed by the end of the year, but saw a burst of interest following last week’s leaked draft opinion in Dobbs v. Jackson Women’s Health that would overturn the landmark 1973 abortion rights decision.

Rep. Adam Schiff (D-Calif.) has also announced support for expanding the Supreme Court in recent days.

“The draft decision from the Supreme Court on Roe is deeply concerning and Congress must now use every tool at our disposal to protect a woman’s right to choose,” DeSaulnier said in a statement. “As the Supreme Court has become increasingly partisan and extremist, now more than ever we must expand the Court to preserve democracy and the personal liberties of millions of Americans, including the right to make one’s own health care decisions.”

Court expansion advocates say that today’s 6-3 conservative majority on the court has been “stolen” from liberals due to Senate Minority Leader Mitch McConnell (R-Ky.) blocking former President Obama’s nomination of now-Attorney General Merrick Garland in 2016.

Opponents argue that liberals want to pack the court with justices who would be more favorable to left-wing causes and point to comments from the late Justice Ruth Bader Ginsburg, lionized by Democrats, saying that nine was the right number of justices.

Speaker Nancy Pelosi (D-Calif.) distanced herself from the proposal last year soon after it was introduced, saying that she had “no plans” to bring it to the floor. She supports a commission to study the issue. With the new additions, the measure now has support from about a quarter of the House Democratic Caucus.

Demand Justice, a progressive group that has long advocated for liberal judicial nominees and reform measures like court expansion, celebrated the wave of lawmakers signing on to the bill.

“The leaked draft opinion makes clear that the only way to protect our Constitutional rights is to expand the Court, and more progressive champions are stepping forward to support the Judiciary Act,” said Christopher Kang, chief counsel at Demand Justice.

Sen. Ed Markey (D-Mass.) leads companion legislation to the Judiciary Act of 2021 in the Senate that is co-sponsored by Sens. Tina Smith (D-Minn.) and Elizabeth Warren (D-Mass.), but it has not seen the same wave of new support in the aftermath of the leak.

Support for Supreme Court expansion is increasing among progressive groups outside Congress, as well. On Tuesday, a coalition of environmental groups including Greenpeace USA, the Center for Biological Diversity and the Climate Action Network endorsed expanding the Supreme Court and support the Justice Act, saying that the nine-member body “has been hijacked by far-right partisan interests.”

Polls show that Supreme Court expansion is generally unpopular. An April 2021 Politico-Morning Consult poll found that just 26 percent of voters favored expansion and 46 percent said that they thought the number should stay at nine.

Tags Barack Obama Brendan Boyle Brendan Boyle Ed Markey Merrick Garland Mississippi Mitch McConnell Nancy Pelosi Nanette Diaz Barragán Obama Roe v. Wade Ruth Bader Ginsburg

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