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Sen. Ed Markey speaks outside the Supreme Court

Sen. Ed Markey (D-Mass.) speaks at a press conference in front of the U.S. Supreme Court on April 15, 2021 in Washington, D.C. (Photo: Drew Angerer/Getty Images)

Progressives to Biden: Ignore Panel Advice and Embrace Supreme Court Expansion

"The GOP's rigged bench is contorting our laws," said Sen. Ed Markey. "We need to pass legislation to expand the Supreme Court."

Jake Johnson

Progressive lawmakers and advocacy groups on Friday urged President Joe Biden to disregard the advice of a bipartisan panel he convened earlier this year and embrace Democratic legislation that would add four justices to the U.S. Supreme Court, an effort aimed at combating the right-wing takeover of the nation's judicial system.

"Democrats must move swiftly to pass the Judiciary Act to add four seats to the court before it's too late."

On Thursday, the White House released draft materials compiled thus far by the Presidential Commission on the Supreme Court of the United States, an advisory body composed of conservative and liberal constitutional experts. The panel is scheduled to meet Friday to begin assembling a final report for Biden, who on the campaign trail said he was "not a fan" of expanding the Supreme Court.

While an analysis by one of the panel's subcommittees concluded that "we do not believe there is a formal legal obstacle to expansion of the Supreme Court," the report claimed that "the risks of court expansion are considerable," including that it could harm the court's "long-term legitimacy or otherwise undermine its role in our legal system."

But progressives countered that Republican senators have thoroughly tarnished the legitimacy of the Supreme Court in recent years by obstructing former President Barack Obama's effort to fill a vacancy and then proceeding to pack the court with three more far-right justices. The then Republican-controlled Senate confirmed conservative Justice Amy Coney Barrett just over a week before the 2020 presidential election—after tens of millions of people had already cast their ballots.

"The GOP's rigged bench is contorting our laws," Sen. Ed Markey (D-Mass.), the lead sponsor of Democrats' Supreme Court expansion bill in the Senate, said Friday. "Voting rights, abortion rights, immigration rights, LGBTQ+ rights, and women's rights are all at stake. We need more than the White House Commission's report. We need to pass legislation to expand the Supreme Court."

Brian Fallon, executive director of the advocacy group Demand Justice, echoed that message, arguing in a statement that the purpose of the White House commission "was not to meaningfully confront the partisan capture of the Supreme Court, but rather to buy time for the Biden administration while it fights other legislative battles."

"This issue can't be put on the backburner anymore," said Fallon. "In the year since President Biden announced he would appoint this commission, the Republican-appointed justices have just made it clearer that court expansion is the only way to halt their attack on our democracy."

The Judiciary Act of 2021, introduced in April by a handful of House and Senate Democrats, would increase the number of justices on the Supreme Court from nine to 13. The legislation has 36 co-sponsors in the House—the most recent being Rep. Chellie Pingree (D-Maine)—but has failed to gain any traction in the Senate.

In a statement announcing her decision to sign on to the bill, Pingree said that "last month, these justices failed to act and allowed a near-half-century precedent to be discarded without a second thought," referring to the Supreme Court's decision to allow Texas' near-total abortion ban to take effect.

"To protect our settled constitutional rights and restore balance to the nation's highest court, Congress must act."

"In over a century, we have not had a more partisan Supreme Court than the one we have today," said Pingree. "It's common sense for the Supreme Court to once again have the same number of justices as we have U.S. appellate courts. To protect our settled constitutional rights and restore balance to the nation's highest court, Congress must act and pass the Judiciary Act."

The Washington Post reported late Thursday that while Biden's Supreme Court panel warned against the supposed "risks" of expansion, it offered a favorable view of term limits, a proposal the body said "appear[s] to enjoy the most widespread and bipartisan support."

"It said a term of 18 years seemed most popular with those who presented testimony," the Post noted. "But there is a big obstacle: Many of those who testified believe the Constitution must be amended to make such a change, a difficult undertaking."

Brett Edkins, managing director of policy and political affairs at Stand Up America, said in a statement that the materials released so far show that "Biden’s commission is waffling in the muddy middle of nowhere."

"The commission wrote 200 hundred pages on legal history and competing proposals to improve the Supreme Court, but failed to make the one recommendation they actually needed to make: Expand the court," said Edkins. "Americans witnessed the dangerous impact of the right-wing takeover of the Supreme Court during the Trump administration, and now the Supreme Court's approval rating is the lowest it has been in modern history."

"Regardless of what the White House commission concludes in its final report to President Biden next month, Democrats must move swiftly to pass the Judiciary Act to add four seats to the court before it's too late," he added. "In the next year, this radical Supreme Court could gut Roe v. Wade, eradicate commonsense gun control measures, and further erode our fundamental freedom to vote. Restoring balance to our nation's highest court is needed now."

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