IE 11 is not supported. For an optimal experience visit our site on another browser.
Image: US SUPREME COURT Building
Brendan McDermid / Reuters file

The problem with Republicans' pushback on Supreme Court expansion

If Mike Lee really wants to debate which party has "spit in the face of judicial independence," I think that's a great idea.


In late October 2020, Senate Republicans scrambled to confirm Amy Coney Barrett's Supreme Court nomination, even as tens of millions of Americans cast their election ballots. Then-Senate Minority Leader Chuck Schumer (D-N.Y.) told his Republican colleagues at the time that this was not an abuse Democrats would soon forget.

"I know you think that this will eventually blow over -- but you are wrong," the New York Democrat explained. He added, "My colleagues may regret this for a lot longer than they think."

Nearly six months later, several congressional Democrats, bolstering Schumer's point about the party's long memory, unveiled a legislative response to the GOP's abuse, and it's fair to say their bill has raised a few eyebrows.

Congressional Democrats [introduced] legislation Thursday to expand the Supreme Court from nine to 13 justices, joining progressive activists pushing to transform the court.... The Democratic bill is led by Sen. Ed Markey of Massachusetts and Rep. Jerry Nadler of New York, the chair of the House Judiciary Committee. It is co-sponsored by Reps. Hank Johnson of Georgia and Mondaire Jones of New York.

Before proponents or opponents of the idea get too invested in the controversy, it's worth emphasizing at the outset that this legislation is unlikely to pass, at least anytime soon. House Speaker Nancy Pelosi (D-Calif.) told reporters yesterday that while she believes the idea of court expansion is worthy of consideration, she has "no plans" to bring this bill to the floor.

Even if Pelosi were to change her mind and announce plans to prioritize the legislation, the bill would face an inevitable filibuster in the Senate. And even it were to somehow clear the upper chamber, there's little to suggest that President Joe Biden -- who recently created a commission to examine judicial reforms -- would be eager to sign it into law.

But sometimes, provocative legislation is worthwhile, regardless of its legislative prospects, because of the way in which it advances a larger conversation. This specific bill to expand the Supreme Court to 13 seats faces long odds in this Congress, but given the ridiculousness of Republican abuses, and the lasting consequences of the GOP's disgraceful efforts, there's value in keeping a reform debate going.

It's against this backdrop that Sen. Mike Lee (R-Utah) made his own contribution to that debate, publishing a tweet that read, "Packing the court is an act of arrogant lawlessness. Those behind this effort spit in the face of judicial independence."

To be sure, the propriety of "court packing" is in dispute, but if the Utah Republican really wants to talk about the importance of "judicial independence," he may not like where the conversation ends up.

Looking back over the last decade or so, it was Republican senators who fought tooth and nail to derail the Obama White House's judicial nominees, regardless of merit. It was Republican senators who tried to impose an unprecedented blockade on nominees for the D.C. Circuit. It was Republican senators who blocked Merrick Garland's Supreme Court nomination for nearly 10 months as part of a different unprecedented blockade. It was Republican senators who announced plans to keep Supreme Court vacancies unfilled indefinitely if the Democratic ticket won the 2016 presidential election. It was Republican senators who spent the Trump era scurrying to confirm woefully unqualified ideologues as part of a relentless campaign to transform the federal judiciary.

And it was Republican senators who confirmed Justice Amy Coney Barrett eight days before Election Day.

Remind me, Sen. Lee, who's "spit in the face of judicial independence"?