Downtown’s voice in the House of Representatives is attempting to make history. Congressman Jerry Nadler, who chairs the Judiciary Committee in the lower house of the federal legislature, has introduced the Judiciary Act of 2021, which seeks to expand the United States Supreme Court with four additional justices. If enacted, this would bring the total number of judges sitting on the nation’s highest appellate panel to 13.
“There is nothing new about changing the size of the Supreme Court,” he said in announcing the bill. “The Constitution leaves the number of justices to the discretion of Congress, and Congress has changed that number seven times already throughout our history. Our founders understood that, as the country and the judicial system evolved, the Court would need to evolve with it.”
“This legislation represents a much-needed next step in that evolution,” he continued. “Many people tend to think about the Supreme Court in terms of its individual members. But we should, instead, think about the Court as a cherished institution that is called upon to hear an ever-growing set of increasingly complex and diverse legal issues each day.”
Mr. Nadler argued that, “the Judiciary Act of 2021 takes the long view of this institution and ensures that it can meet the challenges of today and those for many years to come.” He pointed out that the Court’s current structure of nine justices dates from a time when there were nine Circuit Courts of Appeal, the lower federal panels that feed cases to the Supreme Court. Today, there are 13 such Circuit Courts of Appeal.
“Nine justices may have made sense in the 19th Century, when there were only nine circuits,” he explained, “and only a few hundred appeals were filed before the Court every year.” That was an era, he argued, “when so many of our most important laws — covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime — simply did not exist, and did not require adjudication by the Supreme Court.”
“But the logic behind having only nine justices is much weaker today,” he contended, “when there are 13 circuits, 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. Our predecessors made eminent sense when they pegged the size of the Supreme Court to the number of judicial circuits. As our country has grown, so too should our Supreme Court.”
Critics of the plan allege that Mr. Nadler’s bill is designed to stack the expanded Court with appointees of President Joe Biden. “We are not packing the Supreme Court,” Mr. Nader responded. “We are unpacking it.”
The Congressman did acknowledge, however, that his plan is aimed, at least in part, “to restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.” This was a reference to the fact that Senate Republicans (in March, 2016) shattered longstanding precedent by refusing to consider President Barack Obama’s nomination of Merrick Garland (then a federal judge, now the United States Attorney General) to fill the vacancy created by the death of Justice Antonin Scalia. At the time, they argued that considering a Supreme Court nomination during an election year would “politicize” the process. Using this rationale, they waited until after that year’s presidential election, which handed to newly elected President Donald Trump the opportunity to name the next justice. Four years later, however, when this situation was reversed, Republicans disregarded the antecedent they had established in 2016, and pushed through President Trump’s nomination of Amy Coney Barrett less than a month before the 2020 presidential election. These maneuvers have resulted in a six-three majority on the nation’s highest court for justices appointed by Republican presidents. If the President Obama and President Biden had made the 2016 and most recent appointments, judges placed on the Supreme Court by Democratic presidents would today have a five-four majority.
During the first decades of the Supreme Court’s existence, the panel seesawed between five and ten justices. The most recent Congressionally mandated change in the Court’s size (to nine justices) was in the years following the Civil War. In 1937, President Franklin Roosevelt attempted to expand the Supreme Court (to as many as 15 justices), in order to obtain sympathetic treatment for the legislation behind his New Deal domestic program, which the sitting judges had repeatedly struck down as unconstitutional. In that instance, Roosevelt lost the battle, but won the war. His proposed legislation was defeated in Congress, but it sufficiently rattled the justices then seated on the court that they largely ceased blocking his programs.