Imagine if, after the Supreme Court's racial integration decision Brown v. Board of Education, the segregationist advocacy groups and Southern senators had showed up outside the Supreme Court to announce legislation to change the number of justices. Or if, after the Supreme Court's ruling in Bush v. Gore, the Democrats had tried to change the outcome by adding justices to the court in hope of achieving a different result.
There'd be justifiable outrage at interference with judicial independence, and with outcome-based disappointment driving process-based changes. And there'd be understandable skepticism about whether such court-packing would lead to a never-ending cycle of each new Congressional majority changing the rules to add justices who agreed with them to the high court, eviscerating the judiciary's constitutional role as a check and balance to the other branches of government.
On Tuesday, Senators Markey and Warren of Massachusetts and Tina Smith of Minnesota, along with representatives Jerrold Nadler, Hank Johnson, Cori Bush, and Adam Schiff, Democrats all, introduced the Judiciary Act of 2023, which would add four justices to create a 13-member Supreme Court.
Bush denounced the court in the most vitriolic terms. "The Supreme Court is a cesspool of corruption devastating our communities. Because of the decisions made by an unethical and illegitimate majority, my constituents are unable to access abortion care, have weaker labor protections, are more vulnerable to voter suppression, and are subjected to a racist legal system," she said. "As lawmakers, we have a mandate to ensure our rights are not stripped away by bought-and-paid-for judges trying to implement a fascist agenda."
Markey's press release touted support from an array of advocacy groups, including the Planned Parenthood Federation of America, NARAL Pro-Choice America, Greenpeace USA, MoveOn, and American Atheists.
Congress does have the power to add or subtract justices, as it did during Franklin Roosevelt's presidency. But tinkering with the number of justices seems an odd alternative relative to the other possibilities of, say, enacting laws protecting abortion rights at the federal or state levels. The justices themselves might be tempted to take revenge by attempting to adjust the number of senators.
Israelis took to the streets in protest in recent months to protest a parliamentary effort to rein in the Israeli Supreme Court, and most of the American left, from President Biden on down, were cheering them on and denouncing the Israeli parliamentarians. It'd be an ironic double standard indeed—a sign that this is all about politics and partisanship, not principles—if the left's support for judicial independence from legislative interference applies only in Israel, but not in America. A New York Times editorial, part of a flood of negative Times opinion coverage, harrumphed about how Netanyahu's judicial reform plan would "undermine the written and unwritten checks and balances of Israeli government." Yet about Warren and Markey and Nadler and Bush, the Times editorialists have uttered not a peep of denunciation.