The once-remote idea of adding more justices to the Supreme Court to change its ideological bent is prompting growing discussion within the Democratic Party, creating a new frontier for presidential candidates looking to display their liberal credentials.
Former attorney general Eric H. Holder Jr., who recently decided against running for president, became the latest figure to embrace an expansion of the nine-member court in recent talks at Yale Law School and Columbia University.
He questioned the validity of the current court, given Senate Republicans’ refusal to vote on Judge Merrick Garland after President Barack Obama nominated him to the Supreme Court in March 2016. The seat was ultimately filled by President Trump’s nomination of Justice Neil M. Gorsuch.
“Given the Merrick Garland situation, the question of legitimacy is one that I think we should talk about,” Holder said. “We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic president and a Congress that would do that.”
His comments come as activists launch an organized effort to prod the presidential contenders to say publicly they’re open to such ideas. Sen. Kirsten Gillibrand (D-N.Y.) has called adding justices — or imposing term limits on them — “interesting ideas that I would have to think more about.”
Pete Buttigeig, the mayor of South Bend, Ind., who is exploring a presidential campaign, has responded to questions by inviting consideration of either adding justices or rotating them on and off the court. He has also discussed a new 15-justice structure for the court — five Democratic appointees, five Republican appointees, and five chosen by the other 10.
Conservatives have long been galvanized by the promise of moving the Supreme Court to the right, making it a sometimes significant factor in their voting decisions. Now liberals, angered by the aggressive GOP push to remake the federal courts, are becoming equally impassioned, prompting the discussion of far-reaching ideas for remaking the nation’s highest legal body.
The concept of expanding the Supreme Court, like the phrase “court packing” itself, fell into lengthy disrepute after 1937, when President Franklin D. Roosevelt — frustrated that conservative justices were blocking New Deal programs he considered to be crucial for the country — sought to add six friendlier justices, prompting an outcry even from allies.
Some liberal activists and scholars say the idea now merits a new look. They view the GOP’s refusal to consider Garland as tantamount to stealing a Supreme Court seat, and they contend that the Senate paid insufficient attention to the sexual misconduct allegations against Justice Brett M. Kavanaugh in last year’s confirmation hearing, which he forcefully denied.
Republicans, these activists fear, have in essence created a judicial buffer against any future liberal agenda if Democrats recapture the White House and Congress.
“Democrats cannot sit back and accept the status quo of a partisan Republican five-seat majority for the next 30 years,” said Brian Fallon, a former adviser to presidential candidate Hillary Clinton and to Senate Minority Leader Charles E. Schumer (D-N.Y.), who now runs the advocacy group Demand Justice. “We don’t consider those two seats that Trump has filled to be legitimate.”