House Speaker Nancy Pelosi on Thursday hit the brakes on Democrats’ rush to pack the Supreme Court with four more justices, but she said she was open to a high court makeover down the road.
In a carefully choreographed Washington production, top House Democrats unveiled their court-packing legislation only to have Mrs. Pelosi announce a short time later that she would not bring the bill to a vote — at least not yet.
The disconnect between Mrs. Pelosi and her top lieutenants, who authored the bill, was not a rift in the party, Democrats said. Instead, it was a messaging strategy that showed the liberal base that they were serious about reshaping the Supreme Court to restore a liberal majority while reassuring moderate voters that Democrats would not rush headlong into a dramatic remake of the institution.
The bench hasn’t been expanded in more than 150 years, and court-packing would test the Constitution’s separation of powers.
“I don’t know if this is a good idea or a bad idea,” said Mrs. Pelosi, adding that the growth of the country and economy may suggest some changes are needed to the highest court in the land.
She said she would wait to see a report from President Biden’s commission that is studying the size of the Supreme Court and tenure of justices.
Missouri Attorney General Eric Schmitt, a Republican, said the Democrats are making an excuse for a power grab.
“We should take them at their word,” he said. “They are taking their cues and wishes from the radical left.”
The bill by top Democrats, including House Judiciary Committee Chairman Jerrold Nadler of New York, would expand the nine-seat Supreme Court bench to 13.
The Democratic lawmakers reasoned that 13 was a proper number because of the 13 federal court circuits, allowing for a single justice to oversee appeals from each one.
The change also would empower Mr. Biden to overturn the 6-3 Republican-appointed majority with a 7-6 majority of Democratic-nominated justices.
“Speaker Pelosi and others will come along,” Mr. Nadler said.
Mr. Nadler and several other Democrats introduced the legislation at a press conference on the steps of the Supreme Court.
Sen. Edward J. Markey, Massachusetts Democrat, declared that the Supreme Court is broken after three appointments by former President Trump.
“It is out of balance and it needs to be fixed,” said Mr. Markey, Massachusetts Democrat. “Too many Americans have lost faith in the court as a neutral arbiter.”
The Supreme Court has had nine justices since 1869. The Judiciary Act of 1789 was the first legislation to set the number of justices, at six, but the court shifted from five justices to as many as 10 over the next 80 years.
Some of the moves were made because of the changing number of federal circuit courts. Other justifications for increasing or decreasing the number of justices were disagreements between presidents and Congress, and changes of administration.
Josh Blackman, a professor at South Texas College of Law, said the number “just wasn’t that important” back then because the high court was not weighing a significant number of cases.
He noted that the historic Dred Scott v. Sandford decision in 1857, which declared limits on slavery in federal territories to be unconstitutional and that Blacks could not be U.S. citizens, didn’t even draw a brief from the U.S. government. In the present day, the U.S. government usually files briefs in landmark cases and even argues the government’s position before the justices.
If Mr. Biden can add justices, Republicans say, then nothing is stopping the next Republican president from doing the same. They say such a move would interfere with the independence of the judicial branch.
“This would inevitably lead to changing the number of Supreme Court Justices every time there is a shift in power. Over time, that would surely make the Supreme Court a political football, destroying its effectiveness and independence,” said Sen. Lindsey Graham, South Carolina Republican.
The Constitution does not set the number of justices for the high court, but an expansion would have to go through Congress.
A court-packing bill would be unlikely to pass the Senate, which is split 50-50 between Democrats and Republicans and where most bills must clear a 60-vote motion for cloture to end debate.
Advocates for court expansion can’t count on support from all the Democrats.
Sen. Joe Manchin III of West Virginia, the most conservative Democrat in the upper chamber, said he is not on board. “I think everyone knows I have not been in favor of expanding the court,” he told reporters Thursday.
Mr. Markey insisted that lawmakers must act. “Congress has done this before, and Congress must do it again,” he said. “We must expand the Supreme Court, and we must abolish the filibuster to do it.”
Senate Majority Leader Mitch McConnell called the Democrats’ move a threat and an attempt to manipulate the justices in ruling for their liberal agenda.
“The left wants a sword hanging over the justices as they weigh every case,” the Kentucky Republican said. “The threats are the point. The hostage-taking is the point.”
Liberals aren’t shy about their intentions.
Elliot Mincberg, a senior fellow for the People for the American Way, said passing the legislation will be an uphill battle given the Senate’s filibuster, but he added that the debate about expanding the bench could shape the court’s rulings.
“Even the active discussion of this may — and will, I hope — have some effect on justices in terms of trying to be careful and not to make radical decisions,” he said.
The White House said the legislation doesn’t change Mr. Biden’s views on changing the high court and he is waiting to see what his commission suggests before deciding whether to support the bill.
“The president believes in freedom of speech, and members can come forward and share their points of views on a range of issues, including the future of the courts,” said White House press secretary Jen Psaki. “He has his own view, and he looks forward to seeing the recommendations that come out of this court commission.”
Republicans have tried to counter the liberal push by introducing a constitutional amendment, known as the Keep Nine, which would ban any change in the number of Supreme Court seats.
Sen. Ted Cruz, Texas Republican, has introduced legislation that would prohibit the Democrats from unilaterally changing the number.
“For the sake of our liberties and the future of our country, we must preserve the independence of our judiciary,” Mr. Cruz said. “I urge my colleagues to defend the fundamental liberties of their constituents — their religious liberty, freedom of speech, and Second Amendment rights — and swiftly take up and pass these proposals to prevent court packing.”
⦁ Kery Murakami and Seth McLaughlin contributed to this report.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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