Four Democratic members of Congress plan to introduce law to add four seats to the Supreme Court. If passed, President Biden can immediately nominate four people to fill those seats, giving the Democrats a 7-6 majority.
The bill being introduced by Representatives Jerrold Nadler (D-NY), Hank Johnson (D-GA) and Mondaire Jones (D-NY) in the House of Representatives and Senator Ed Markey (D-MA) in the House of Representatives is called the Senate Justice Act of 2021 and it is very short. It amends a provision in federal law that provides that the Supreme Court should consist of one Chief Justice and eight Associate Judges to read that the Court is composed of one United States Chief Justice and twelve Associate Justices, eight of whom have a quorum. "
Although the Constitution provides that there must be a Supreme Court, it leaves the question of how many judges there should be to Congress. Under the Judiciary Act of 1789, the court originally had six seats and briefly ten seats under President Lincoln.
Realistically speaking, the bill is unlikely to be passed anytime soon. Until recently, adding seats to the Supreme Court was considered a very radical tactic – President Franklin Roosevelt proposed similar legislation in 1937 that did not end well for him. President Biden has in the past expressed reluctance to add seats to the Court.
But the policy of reforming the Supreme Court has evolved very rapidly in recent years, and it is possible to envision a critical mass of lawmakers gathering behind the enlargement of the Court when a majority of the current judges make decisions that the Democrats likely outraged, such as a decision neutralizing the remnants of the voting law.
The new law to expand the court would effectively neutralize half a decade of Republicans' work manipulating the Senate confirmatory process to ensure GOP control over the country's highest court of law.
Judge Antonin Scalia died in February 2016. In response, Senate Republicans refused to give President Obama's candidate to fill that seat, now Attorney General Merrick Garland, a confirmation hearing or vote.
To justify this decision, Republicans invented a new rule, claiming that it was inappropriate to re-elect a Supreme Court candidate in a presidential election year. Prior to 2016, there have been seven election year confirmations since the beginning of the 20th century, including Justice Anthony Kennedy's confirmation in 1988.
The vacant seat was eventually filled by Conservative Judge Neil Gorsuch after President Trump took office in 2017.
Then Justice Ruth Bader Ginsburg died in September 2020. Republicans immediately abandoned the rule they invented to justify blocking Garland's confirmation and confirmed Trump candidate Amy Coney Barrett just eight days before the 2020 election, the Trump lost.
It's also worth noting that Trump lost the referendum by nearly 3 million ballots in 2016. And while Republicans controlled the Senate for the entire Trump presidency, they only controlled it because the Senate is incorrectly split to effectively give additional seats to small states.
Throughout Trump's presidency, the Democratic "minority" in the Senate represented millions more Americans than the Republican "majority". All three people appointed by Trump to the Supreme Court – Gorsuch, Barrett, and Justice Brett Kavanaugh – were nominated by a president who lost the referendum and endorsed by a bloc of senators representing less than half of the country.
Legislation that adds seats to the Supreme Court would put Democrats in control of a body they would rightly control if the United States voted for presidents and senators in free and fair elections where all citizens have equal votes counting.