The Real Reason These Democrats Want to Expand Supreme Court

Virginia Allen /

Four Democratic members of Congress have introduced legislation to expand the Supreme Court from nine justices to 13. 

Sen. Ed Markey, D-Mass., and Rep. Jerry Nadler, D-N.Y., introduced the bill April 15 with Reps. Hank Johnson, D-Ga., and Mondaire Jones, D-N.Y.

Markey said he supports expanding the high court because it “is broken.”

GianCarlo Canaparo, a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation and co-host of the podcast “SCOTUS 101,” says that Markey and other Democrats seek to expand the court to advance a far-left agenda. Opponents of the move have dubbed it “court packing.”

Canaparo joins “The Daily Signal Podcast” to explain the likelihood of Democrats’ succeeding in expanding the Supreme Court and whether the Constitution even allows for adding justices. (The Daily Signal is Heritage’s multimedia news outlet.)

We also cover these stories: 

Listen to the podcast below or read the lightly edited transcript.

Virginia Allen: I am joined by GianCarlo Canaparo, a legal fellow in the Meese Center for Legal and Judicial Studies at The Heritage Foundation and co-host of the outstanding podcast “SCOTUS 101.” GianCarlo, welcome to the show.

GianCarlo Canaparo: Thank you, Virginia. And thank you for that very kind compliment.

Allen: Yeah, of course. If you’re not subscribed to “SCOTUS 101,” check it out. Well, let’s go ahead and jump right in.

Last week, four Democrats introduced a bill to expand the Supreme Court from nine justices to 13 justices. Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York are really leading this charge on the bill, but Reps. Hank Johnson of Georgia and Mondaire Jones of New York are co-sponsoring the bill.

So let’s begin with the arguments from the left, why do these Democratic lawmakers argue that the Supreme Court needs to be expanded and, specifically, expanded right now?

Canaparo: It’s actually an interesting question because it assumes that there’s a connection between Democrat-stated concerns about the Supreme Court and their solution. There’s not, and that makes the question sort of difficult to answer. Let me show you why by explaining first what Democrats are saying is the problem with the Supreme Court.

So, Sen. Markey has said the court is “broken” and he has claimed that most Americans view the Supreme Court as a partisan political institution. Rep. Nadler has said that the court needs “balance” after Republicans, what he calls norm-breaking actions leading to its current composition.

What you won’t find among these statements is any explanation of why the court is broken and you won’t find anyone actually defending the talking point that Americans view the court as broken because that is actually belied by polling after polling, after polling.

Americans overwhelmingly have the most confidence in the Supreme Court of any of our government branches, and it’s not even close. So the argument is based on a faulty premise. It’s not clear why court-packing would even fix whatever their problem is. So it begs the question, what’s really going on?

Thankfully, there are a few Democrats who aren’t sticking so close to their blurry talking points and they’ve shined some light on the real issue.

Here’s a quote, for instance, by Democratic Rep. Hank Johnson: “It’s time we start thinking about the Supreme Court like we think about the rest of the government and consider whether and how its current composition allows it to effectively do what we need it to do.”

Two things stand out to me there. If Sen. Markey is right, that Americans view the court as political, then Rep. Johnson is wrong, that we should think about the court like we do the rest of the government, political.

When Johnson says that the court should do what we need it to do, what does he mean other than deliver progressive political policies? That’s what this boils down to, Democrats fundamentally fear a court that will not be a rubber stamp to a left-wing agenda. A court that holds the Democrats’ agenda up to constitutional scrutiny is not a court they want.

Allen: Wow. OK. Thank you so much for that breakdown. That’s really, really helpful because I think that has been the question: Wait a second, it certainly doesn’t seem like the Supreme Court is broken, so why all of a sudden are we hearing this talking point that it is?

It was really powerful on the day that Sen. Markey of Massachusetts introduced the bill with the other lawmakers, there was a post that were circulating all over Twitter that was two pictures.

On one side, you saw Sen. Markey, this was from several years ago, and he was delivering remarks behind a podium with a sign attached to the podium that read, “#weneednine.” In other words, we need nine Supreme Court justices.

Now, the other picture was also Sen. Markey, just last week, now standing behind a podium with the sign attached that read, “Expand the court.”

Two very contrasting images of the same individual. Why do you think Sen. Markey and the other Democrats have changed their views on this issue and changed them pretty quickly?

Canaparo: Yeah. You don’t have to look hard to find hundreds of comments like that from almost any Democrat who’s been in office for more than a couple of decades. That’s just further evidence that this is pure partisan politics that motivates this change. There is no principle here except the principle of power.

Allen: So the bill has been introduced but it hasn’t been voted on yet in either the House or the Senate, what would need to happen for this bill to get a vote on the House floor?

Canaparo: Very simply, for [House Speaker] Nancy Pelosi to advance it.

Allen: OK. We know from what Pelosi has said that expanding the court is not off the table. She has also definitely not promised that she will bring a vote on this bill, so I guess we’ll wait and see what happens there. How likely do you think it is that Congress will call for a vote on this?

Canaparo: In the short term, not likely. But talk to me again after [President Joe] Biden’s court-packing commission concludes its 180-day-long consideration of the issue.

If members of the committee—and I say members rather than the committee as a whole because the committee is bizarrely not empowered to issue a recommendation—but if members of the committee back court-packing or Biden decides to back court-packing, Pelosi will change her position in a heartbeat and the bill will get a vote.

Allen: You mentioned that commission that President Joe Biden has established, what exactly is the purpose that Biden has given for creating this commission to look at the Supreme Court?

Canaparo: Well, the commission’s stated purpose is to consider various reforms to the Supreme Court’s composition, including adding justices. There are several reasons, however, to doubt that that is the commission’s true purpose. To see why, I think it’s helpful to compare this commission to the last commission to examine the court, which was in 1975.

That commission had 10 members who were all nonpartisan experts from within the Justice Department. This commission, by contrast, has 36 members, almost entirely academics, a supermajority of whom are progressives and many of those have already publicly taken positions in favor of changing the court.

Second, this commission, unlike the first, has virtually no time to actually study the court. It has 180 days to issue a report from its first meeting.

Now, to put that in perspective, to show you how little time they actually have, if a 36-member commission was going to hold a hearing and interview witnesses, if each member got five minutes for an opening statement and five minutes to ask one witness questions, that’s six hours, not allowing for any breaks. So if this commission was actually going to study anything, it would take ages.

Finally, this commission has not been empowered to issue any recommendations, which the first, of course, was.

So what is it doing really? It’s not studying the court, it’s not identifying any real problems, and it doesn’t have the time to identify any solutions to these fictional problems. So the truth is that it’s probably serving a stealth partisan purpose, to remind the court that the political party in power will, A, continue to publicly tarnish its reputation and B, try to change it if it doesn’t deliver the political outcomes that the party wants.

Allen: Constitutionally, is there anything that says there can only be X number of justices on the Supreme Court?

Canaparo: No, the Constitution doesn’t set a number, but we’ve had nine since 1869. Given that history, the question shouldn’t be, “Why not 13?”—which is how Democrats would probably frame it—but, “Why not nine? Why would you change it?”

The only answer to that question that Democrats can give is because more than nine will let the Democratic president appoint political loyalists.

Now, that’s not an acceptable answer if you value an independent judiciary. In fact, it would accomplish exactly what Sen. Markey says he’s trying to avoid, which is turning the administration of justice into a game of politics.

There are simply no other reasons to expand the court. Workload is not one. The court only hears 76 cases a year, which is less than 50% of what it heard 30 years ago. Regardless, every justice hears every case so adding justices doesn’t spread the workload around.

Nor is it any reason to add justices that we have more circuit courts today than in the past. We used to have one justice for each circuit because the justices had to sit on the circuit courts also. They no longer do that. There are simply no other reasons to add justices to the court except to gain a political advantage.

Allen: So if the Founding Fathers were alive today and they were watching this scenario unfold, what do you think they would say?

Canaparo: I mean, quite simply put, they’d be terrified. Alexander Hamilton and several others drilled this point home, an independent judiciary is essential to a government that protects liberty.

A liberty-protecting government that governs according to the will of the majority but protects the rights of the minority cannot exist without an independent judiciary. Packing the court full of political purposes is the end of judicial independence, pure and simple.

Allen: Wow. I mean, how concerned should we be? Because obviously, the Democrats control the House and the Senate, so if this bill does come on the floor for a vote, I mean, what do you think the likelihood is that we’re going to see this pushed through and before we know it there’ll be 13 justices on the Supreme Court?

Canaparo: I mean, we should be concerned. It’s no saving grace that there are a few Democrats in the Senate right now who oppose this. Political will is as fickle as the summer wind. What isn’t though is an independent judiciary that stands against what the Founders feared was a tyranny of the majority.

The right political wind could shift and this could get a vote and as unlikely as it might seem now, you can’t discount the possibility and so you can’t ignore the potential danger that this causes.

Allen: Well, GianCarlo, before we let you go, I do want to ask you about your podcast, “SCOTUS 101.” It’s a great show. But for those who might not be familiar with it, can you tell us a little bit about it?

Canaparo: Yeah, sure. We cover just about everything about the Supreme Court—what the court’s doing, what opinions it has released recently—we break it down in a way that’s accessible to non-lawyers.

We also have guests on all the time, a lot of federal judges and Supreme Court advocates to sort of give you the inside baseball about how the court works and how the lower courts, how they go about doing what they do.

Allen: That’s great. You can find that podcast wherever podcasts can be found, correct?

Canaparo: That’s right. Apple Podcasts, Heritage.org, you name it.

Allen: Awesome. Well, GianCarlo, we really appreciate your time today.

Canaparo: It was my pleasure. Thanks for having me.

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