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.
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?
- 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.
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.