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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate provides the Northwest Progressive Institute's uplifting perspective on world, national, and local politics.

Wednesday, March 9th, 2022

A majority of Washington State voters favor expanding the size of the U.S. Supreme Court

A major­i­ty of like­ly 2022 Wash­ing­ton State vot­ers favor expand­ing the size of the Unit­ed States Supreme Court from nine to thir­teen mem­bers to make it a more diverse and rep­re­sen­ta­tive body, NPI’s research has found.

50% of 700 like­ly 2022 vot­ers sur­veyed last month for NPI by Pub­lic Pol­i­cy Polling said they strong­ly or some­what sup­port­ed pass­ing leg­is­la­tion to expand the Court, while 41% were strong­ly or some­what opposed. 8% were not sure.

Visualization of NPI's poll finding on U.S. Supreme Court expansion

Visu­al­iza­tion of NPI’s poll find­ing on U.S. Supreme Court expansion

In Con­gress, Sen­a­tors Ed Markey, Eliz­a­beth War­ren, and Tina Smith have intro­duced the Judi­cia­ry Act of 2021, which would expand the Court to con­sist of twelve Asso­ciate Jus­tices and one Chief Jus­tice (thir­teen total). It’s a very sim­ple bill, and it con­sists of just a few para­graphs, which are as follows:

To amend title 28, Unit­ed States Code, to allow for twelve asso­ciate jus­tices of the Supreme Court of the Unit­ed States.

Be it enact­ed by the Sen­ate and House of Rep­re­sen­ta­tives of the Unit­ed States of Amer­i­ca in Con­gress assembled,

SECTION 1. SHORT TITLE.

This Act may be cit­ed as the “Judi­cia­ry Act of 2021”.

SECTION 2. NUMBER OF JUSTICES; QUORUM.

Sec­tion 1 of title 28, Unit­ed States Code, is amend­ed by strik­ing “a Chief Jus­tice of the Unit­ed States and eight asso­ciate jus­tices, any six of whom shall con­sti­tute a quo­rum” and insert­ing “a Chief Jus­tice of the Unit­ed States and twelve asso­ciate jus­tices, any eight of whom shall con­sti­tute a quorum”.

Only one mem­ber of the Wash­ing­ton State con­gres­sion­al del­e­ga­tion has gone on record as sup­port­ing the Court’s expan­sion: Rep­re­sen­ta­tive Prami­la Jaya­pal of the 7th Con­gres­sion­al Dis­trict. In an arti­cle pub­lished on Mon­day, The Stranger’s Rich Smith explained that he tried to find out where the rest of the state’s con­gres­sion­al del­e­ga­tion stands on the mat­ter, but got very few responses:

When asked, com­mu­ni­ca­tions staff for Rep­re­sen­ta­tives Suzan Del­Bene, Rick Larsen, Derek Kilmer, Kim Schri­er, Adam Smith, Mar­i­lyn Strick­land, and Maria Cantwell did not respond to requests for com­ment on the bill. (I asked some of the Repub­li­cans, but hon­est­ly I gave up halfway through typ­ing out the email address for Rep. Cathy McMor­ris Rodger­s’s com­mu­ni­ca­tions direc­tor, because why.)

A spokesper­son for Sen­a­tor Pat­ty Mur­ray said the sen­a­tor rec­og­nized that Repub­li­cans “fun­da­men­tal­ly under­mined” the “integri­ty and inde­pen­dence” of the courts over the last four years, is “absolute­ly invest­ed in fig­ur­ing out how we restore that trust,” but does not sup­port the Jus­tice Act.

She does, how­ev­er, “sup­port the Con­sti­tu­tion, which grants Con­gress the pow­er to set the num­ber of fed­er­al judges — includ­ing for the Supreme Court.” Isn’t that a nice thing to say?

Rich then added:

Though no Wash­ing­ton Demo­c­rat in Con­gress would say why they haven’t signed onto the bill, they’re like­ly refus­ing to com­mit because only 26% of Amer­i­cans think Con­gress should pass such a law, though near­ly 30% don’t have an opin­ion or don’t know.

And with an elec­tion com­ing up this fall, Repub­li­cans say they can­not wait to slam Democ­rats for sup­port­ing “court packing.”

Sen­a­tor Rick Scott told Politi­co, “I can tell you we do our work over at the NRSC and it’s res­onat­ing. The pub­lic doesn’t like it. Repub­li­cans and Democ­rats, nei­ther of them like it.”

The research we’re releas­ing today shows that, at least in Wash­ing­ton State, the pub­lic is sup­port­ive of U.S. Supreme Court expansion.

50% is a major­i­ty, and it’s about twice the lev­el of sup­port as that Morn­ing Con­sult poll that Rich linked to in the excerpt above (26%).

This find­ing just goes to show that state-lev­el polling can be very dif­fer­ent than nation­al polling. And it’s pos­si­ble that in the months and years to come, nation­al and state sup­port will grow, espe­cial­ly after the Court over­turns Roe v. Wade.

(I say when because every indi­ca­tor we have sug­gests the Court’s six-mem­ber right wing bloc is pre­pared, by the end of the cur­rent term, to join a major­i­ty opin­ion gut­ting the Court’s pre­vi­ous hold­ings sup­port­ing repro­duc­tive rights.)

Here’s the full text of the ques­tion we asked, and the answers we received:

QUESTION: Arti­cle III of the Unit­ed States Con­sti­tu­tion gives Con­gress the respon­si­bil­i­ty of deter­min­ing the size of the Unit­ed States Supreme Court and the estab­lish­ment of all low­er courts. Do you strong­ly sup­port, some­what sup­port, some­what oppose or strong­ly oppose the pas­sage of leg­is­la­tion to expand the size of the Unit­ed States Supreme Court from nine mem­bers to thir­teen mem­bers to make it a more diverse and rep­re­sen­ta­tive body?

ANSWERS:

  • Sup­port: 50% 
    • Strong­ly sup­port: 39%
    • Some­what sup­port: 11%
  • Oppose: 41%
    • Some­what oppose: 9%
    • Strong­ly oppose: 32%
  • Not sure: 8%

Our sur­vey of 700 like­ly 2022 Wash­ing­ton State vot­ers was in the field from Thurs­day, Feb­ru­ary 17th through Fri­day, Feb­ru­ary 18th, 2022.

It uti­lizes a blend­ed method­ol­o­gy, with auto­mat­ed phone calls to land­lines (50%) and text mes­sage answers from cell phone only respon­dents (50%).

The poll was con­duct­ed by Pub­lic Pol­i­cy Polling for the North­west Pro­gres­sive Insti­tute and has a mar­gin of error of +/- 3.7% at the 95% con­fi­dence interval.

More infor­ma­tion about the survey’s method­ol­o­gy is avail­able here.

Our ques­tion con­sist­ed of three ele­ments: (1) a fac­tu­al expla­na­tion of what the Con­sti­tu­tion says about the judi­cial branch, (2) a syn­op­sis of the Judi­cia­ry Act of 2021, and (3) a sim­ple ratio­nale for pass­ing it. Our goal was to ask about Court expan­sion as neu­tral­ly as pos­si­ble to find out what peo­ple real­ly think.

Not sur­pris­ing­ly, Demo­c­ra­t­ic vot­ers are very sup­port­ive. 78% of them favor expand­ing the Supreme Court. Repub­li­can vot­ers’ oppo­si­tion is iden­ti­cal to that fig­ure: 78%. That was actu­al­ly pleas­ant­ly sur­pris­ing, because some­times we see Repub­li­can oppo­si­tion to ideas that we’re test­ing in the high eight­ies or the nineties. Vot­ers who iden­ti­fy as inde­pen­dent, mean­while, are some­what split. 49% present­ly oppose court expan­sion, and 44% are supportive.

Those who oppose expand­ing the size of the Court but agree that the Court needs to be reformed have sug­gest­ed alter­na­tives, like doing away with life­time appoint­ments in favor of terms that expire. But get­ting rid of life­time appoint­ments would require amend­ing the Unit­ed States Constitution.

Expand­ing the Court would entail pass­ing a bill in the House, abol­ish­ing the fil­i­buster to pass a bill in the Sen­ate, and get­ting a pres­i­den­tial signature.

That’s doable with a stronger Demo­c­ra­t­ic tri­fec­ta, where­as amend­ing the Con­sti­tu­tion requires exten­sive Repub­li­can coop­er­a­tion at two lev­els: in Con­gress (where a two-thirds vote of each cham­ber would be need­ed) and in state­hous­es (three-fourths of the states have to rat­i­fy a con­sti­tu­tion­al amendment).

Such coop­er­a­tion is most assured­ly not going to be forth­com­ing, no mat­ter how much some reform­ers pine for some good ‘ol bipartisanship.

Hav­ing suc­cess­ful­ly packed the Court to their lik­ing already, Repub­li­cans are not going to par­tic­i­pate in enact­ing any scheme that would unpack it.

Expand­ing the Court to thir­teen mem­bers would ush­er in a new major­i­ty, but it would be a nar­row one. There would still be six right wing jus­tices on the Court who would have a lot of influ­ence and might occa­sion­al­ly pre­vail in a case. They would just be bal­anced out by a total of sev­en more pro­gres­sive justices.

There is noth­ing par­tic­u­lar­ly mag­i­cal or spe­cial about the num­ber nine. When the Unit­ed States Supreme Court was first cre­at­ed fol­low­ing rat­i­fi­ca­tion of the Con­sti­tu­tion, it did not have nine mem­bers — it had six:

The Judi­cia­ry Act of 1789 is passed by Con­gress and signed by Pres­i­dent George Wash­ing­ton, estab­lish­ing the Supreme Court of the Unit­ed States as a tri­bunal made up of six jus­tices who were to serve on the court until death or retire­ment. That day, Pres­i­dent Wash­ing­ton nom­i­nat­ed John Jay to pre­side as chief jus­tice, and John Rut­ledge, William Cush­ing, John Blair, Robert Har­ri­son and James Wil­son to be asso­ciate jus­tices. On Sep­tem­ber 26, all six appoint­ments were con­firmed by the U.S. Sen­ate.

It was­n’t until 1869, more than half a cen­tu­ry lat­er, that the size of the Court was increased to nine mem­bers by Con­gress. It has been nine since then.

Pres­i­dent Franklin Delano Roo­sevelt mem­o­rably pro­posed expand­ing the Court in the 1930s, but the leg­is­la­tion he request­ed was not approved by Congress.

How­ev­er, around the same time that Roo­sevelt (who was frus­trat­ed that the Court kept inval­i­dat­ing New Deal leg­is­la­tion) asked Con­gress to expand the Court, a key jus­tice, Asso­ciate Jus­tice Owen Roberts, became more sym­pa­thet­ic to the admin­is­tra­tion’s posi­tion, bring­ing an end to the so-called Lochn­er era, in which the Supreme Court often sided with busi­ness inter­ests against the pub­lic interest.

In recent years, anoth­er Roberts — Supreme Court Chief Jus­tice John Roberts, appoint­ed by George W. Bush — has occa­sion­al­ly played a sim­i­lar role, notably vot­ing with the Court’s more pro­gres­sive bloc to uphold the Patient Pro­tec­tion Act and rein­ing in his most rabid right wing colleagues.

But with Amy Coney Bar­rett hav­ing tak­en Ruth Bad­er Gins­burg’s place, John Roberts is no longer the deci­sive swing vote on the Court, and can­not pre­vent it from accept­ing and act­ing on oppor­tu­ni­ties to over­turn prece­dents like Roe and enabling Repub­li­cans to rig elec­tions for their ben­e­fit even if he want­ed to.

The Supreme Court, in its cur­rent incar­na­tion, has sad­ly become a grave threat to the health and sur­vival of Amer­i­can democracy.

The Court is also an unrep­re­sen­ta­tive body, as our ques­tion allud­ed to.

It has no Native Amer­i­can mem­bers, no Asian Amer­i­can mem­bers, and no Pacif­ic Islander mem­bers. It has no LGBTQ+ mem­bers, no mem­bers liv­ing with dis­abil­i­ties, and no mem­bers younger than the age of fifty.

Ketan­ji Brown Jack­son’s arrival will help, but the Supreme Court still won’t be prop­er­ly rep­re­sen­ta­tive and diverse even after her confirmation.

After decades of right wing dom­i­nance, with no end in sight, Con­gress has an oblig­a­tion to rebal­ance the Unit­ed States Supreme Court and make it more diverse. And a major­i­ty of Wash­ing­ton State vot­ers already sup­port enact­ing leg­is­la­tion in the U.S. House and the U.S. Sen­ate to do just that.

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