We have already expanded the Supreme Court. It’s time to do it again


With the leak of Judge Samuel Alito’s draft opinion quashing Roe v. Wade sending shockwaves across the country, the expansion of the Supreme Court once again appears to be a serious proposition in response to the extreme partisanship that pervades our nation’s highest court. Throughout our country’s history, federal legislators have repeatedly expanded and reduced the size of the Supreme Court to ensure a bench that provides careful and fair judicial review.

The history of the court’s expansion demonstrates that not only has the size of the court changed many times, but changes to the number of seats on the bench are a logical result of the drafters’ intent for the Court supreme.

While the framers of our Constitution established the Supreme Court as the highest judicial body in the land, they left the specifics of the court to Congress to decide, including the size of the bench, the scope of jurisdiction of the court and the duration of the judges. ‘ mandate. In the early days of our nation, the very first Congress passed the Judiciary Act of 1789 establishing a six-judge Supreme Court. Since then, the size of the court has fluctuated.

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It grew to 10 justices during the Civil War, and Congress attempted to reduce the number of justices to five after the 1800 election (although it reversed this change before it could go into effect). Some experts argue that the court’s wartime expansion was intended to help President Abraham Lincoln win a Union victory and end slavery by appointing more anti-slavery Republicans to the bench.

Moral imperative: Expanding the Supreme Court to advance a political agenda or protect our fundamental rights is neither new nor harmful – such politically informed changes to the size of the bench are inherent in the drafters’ delegation of the court’s design to the Congress. As the conservative supermajority on the Supreme Court threatens to overturn our longstanding constitutional right to abortion, there is a growing moral and constitutional imperative for Congress to vet the court when basic American rights are at stake.

Today, progressive activists are leading the charge to rebalance the undemocratically appointed conservative supermajority and restore public trust in our nation’s highest court. Like most laws, adding judges to the bench requires a majority vote in each chamber. But in an age of rampant abuses of the filibuster, the Senate would need a supermajority of 60 votes on a procedural matter just to decide on final passage and send it to President Joe Biden’s desk. Unless Democrats end the Senate filibuster by November and pass the Judiciary Act, the chances of rebalancing the court’s ideological scales in the near future are slim.

But not impossible.

The most serious current proposal by Congress for the expansion of the court would add four seats to the bench. The reason behind this number? This would bring the size of the bench in line with the number of circuit courts in our nation’s court system, which has been the case for most of our history. Upcoming Supreme Court rulings on life-or-death issues — like the right to abortion and the right to be free from gun violence — are also likely to serve as a catalyst for movement for a number growing number of Americans. The outrage people expressed at the court’s intention to overturn Roe v. Wade is just the beginning.

The Court’s expansion aims to restore the ideological balance to the bench that Donald Trump and Mitch McConnell have piled with three right-wing nominations: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. This, along with McConnell’s refusal to allow incumbent President Barack Obama to appoint Merrick Garland to the bench, but allowing President Donald Trump to nominate Barrett in the final days of his presidency, rightly outraged Democrats who weren’t just deprived of their legitimate party choice in the Obama campaign. second term, but sidelined while Trump got his pick under an entirely different set of rules.

Offset bench: Due to Trump’s wave of Supreme Court nominations, there is now an overwhelming 6-3 conservative supermajority that does not respect the constitutional rights of the American people. It’s no wonder the current Supreme Court has achieved a historic low of 40% approval after its shadow docket ruling to allow a controversial abortion law in Texas despite national outrage over the restriction clearly unconstitutional reproductive rights bill. Additionally, in a subsequent poll, more than half of registered voters expressed some support for expanding the courts to rebalance the bench away from an extreme political agenda and back to respect for the Constitution.

If the conservative supermajority accurately represented the values ​​and priorities of the American public, the expansion might not be necessary. But the bench is radically out of step with the majority of Americans and its constitutional goal of defending the rights of all people, especially minorities — as it did during Lincoln’s wartime court expansion effort. Today, the Supreme Court is not content to protect the Trumpian minority to which its majority is politically indebted; now the court is effectively depriving the guaranteed rights and freedoms of the majority of Americans who want those rights and freedoms – bodily autonomy, the right to breathe clean air, to not be terrified of gun violence in the school or work – which have long been taken for granted.

To restore legitimacy and public confidence in the Supreme Court, Congress must leverage its power to control the Court’s conservative supermajority and its partisan agenda by adding justices who will fairly apply legal precedent and end rampaging radicalism. who hijacked our country’s highest court. Ultimately, this is not an argument for Democrats to overtake the Court – it is a resounding demand from the majority of Americans to save our Court from the ongoing takeover by the right and ensure that respect for the Constitution remains the sole objective of the Supreme Court.

— Anushka Sarkar is assistant director of communications and press secretary for Stand Up America.

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