From NBC News:
WASHINGTON — Congressional Democrats will introduce legislation Thursday to expand the Supreme Court from nine to 13 justices, joining progressive activists pushing to transform the court.
We shouldn’t be too excited, though. As NBC’s Sahil Kapur reminds us, it’s not likely to happen with these slim Democratic majorities.
The Supreme Court can be expanded by an act of Congress, but the legislation is highly unlikely to become law in the near future given Democrats' slim majorities, which include scores of lawmakers who are not on board with the idea. President Joe Biden has said he is "not a fan" of packing the court.
But it represents an undercurrent of progressive fury at Senate Minority Leader Mitch McConnell, R-Ky., for denying a vote in 2016 to President Barack Obama's pick to fill a vacancy, citing the approaching election, before confirming Trump nominee Amy Coney Barrett the week before the election last year.
Ultimately, our progressive “fury” will get its due, for whatever that is worth. As it turns out, it’s not worth very much, as far as the current Supreme Court is concerned. On Thursday both House Speaker Nancy Pelosi and Judiciary Committee Chairman Richard Durbin declined to wade into the subject, stating they would wait for a study commissioned by President Biden to analyze the issue before committing to any legislation.
Some have suggested there may be some “Overton Window” effect in just advancing the concept of reimagining this warped court as becoming a body that actually represents the interests of the majority of Americans as opposed to churning out conservative ideology. As things currently stand, however, the ultra-conservative amalgamation of justices we are now likely saddled with for a generation or more is the product of a minority of voters whose electoral influence, under an outmoded American system, has yielded not one but two Republican presidents elected without a majority popular vote over the last twenty years. Those last two Republican presidents, with the assistance of Republican-led Senate majorities, proceeded to fill the court with young, reactionary, conservative ideologues, intent on preserving their power as long as possible in the face of unalterable demographic change.
In more stark terms, if the Supreme Court was actually a product of most voting Americans in this country, all of those justices except one would now be on the liberal side of the aisle. Perhaps that fact might at least create a dim awareness among the court’s conservative members of an irreconcilable problem with legitimacy, but that would probably be too much to expect.
Despite the daunting odds of this bill ever becoming law, Ian Millhiser, writing for Vox, poses one scenario that might galvanize its support among all Democrats for its passage:
[T]he politics of Supreme Court reform have moved very quickly in recent years, and it’s possible to imagine a critical mass of lawmakers rallying behind Court expansion if a majority of the current justices hand down decisions that are likely to outrage Democrats, such as a decision neutralizing what remains of the Voting Rights Act.
Of course that would require Democratic majorities at the time such decisions were handed down. It would also require that the filibuster be abolished.
In short, we shouldn’t hold our breath waiting for that scenario to occur. The reality is that while (hopefully) this president will have the opportunity to restore the lower federal courts to a more representational status—and there is great value in that—this Supreme Court, as currently constituted, will likely be an obstacle to progress, for the remainder of many of our lives. In effect it will be a body of movement conservatives wielding its undue influence long after the ”movement” that spawned them has likely passed into history. Barring some miraculous sea change in the attitudes of the court’s now solid six-justice majority (and assuming no sudden absences due to death or retirements), any real solutions to this country’s many problems will almost certainly have to be achieved outside its bounds. Either that or we somehow manage to elect enough people on our side who won’t vacillate when provided the rare opportunity to effect real, transformative change.
It’s probably a good idea to accept and understand that fact now, the better to deal with it later.