Editor’s Note: Senator Edward J. Markey is the junior senator from the Commonwealth of Massachusetts. Congressman Mondaire Jones represents New York’s 17th Congressional District in the U.S. House of Representatives. The opinions expressed in this commentary belong to the authors. View more opinion at CNN.
Minority rule, under which a majority of Americans can’t have their policy preferences reflected in our laws, is anti-democratic. But it’s the hallmark of the modern Republican Party. For decades, the GOP has trafficked in dog-whistle, white grievance politics to hold onto power without popular support for its policies.
From former President Richard Nixon’s Southern Strategy, that sought to mobilize White voters by appealing to their racial fears, to former President Donald Trump’s “Big Lie” about the 2020 election that would have invalidated the votes of millions of Black and Brown citizens across our country, disenfranchisement has been the name of the game for the Republican Party.
And in its pursuit, the GOP has come to rely increasingly on the United States Supreme Court to do its dirty work. They have used the highest court in the land to contort our laws, producing a government that does not truly reflect, understand, or serve the people it’s meant to represent. This is a crisis – one that President Joe Biden acknowledged last week by establishing the Presidential Commission on the Supreme Court of the United States to study reform.
In 2010, the Court’s opinion in Citizens United welcomed a torrent of dark money to flood our electoral process and undermine faith in our political system by allowing corporations to spend unlimited sums of money on elections. In its 2013 Shelby v. Holder decision, the right-wing majority on the Supreme Court struck down a key provision of the Voting Rights Act – which Congress had reauthorized with overwhelming, bipartisan support just seven years prior. And in 2018, in Husted v. A. Philip Randolph Institute, the Court authorized the sort of racist voter purges – removing registered voters from the rolls en masse – that would tilt Georgia’s gubernatorial election against Stacey Abrams that same year.
In the wake of these decisions, Jim Crow returned. The Republican Party had a path to power through an increasingly reactionary, shrinking White minority. The GOP has only won the popular vote once in the last eight presidential elections. National Republican groups are now working to help state lawmakers draft laws to restrict voting in the latest attempt to drag more and more of our country into minority rule.
In 2016, the leading voice of the conservative faction on the Court, Justice Antonin Scalia, died. With former President Barack Obama in office, the 5-4 far-right, anti-democratic majority on the Court was at risk. So, in flagrant defiance of historical norms and precedent, then-Senate Majority Leader Mitch McConnell and his GOP allies stole Scalia’s seat by holding it open for a year – effectively reducing the size of the Court to eight seats for more than a year– until Trump became president, ultimately allowing him to name right-wing Justice Neil Gorsuch to the Court in 2017.
Then, in 2020, despite having insisted that there could be no Supreme Court confirmations in a presidential election year just four years earlier, Republicans violated their own rule and confirmed Justice Amy Coney Barrett in late October to fill the opening that arose with the death of Justice Ruth Bader Ginsburg about a month earlier. The result? An illegitimate 6-3, far-right majority sitting on the Supreme Court, one that is poised to go further than any Court in modern history to ensure that a wealthy, right-wing minority continues to dominate this country for a generation.
This Supreme Court has the ability to repeal our reproductive and marriage rights. To institute racist immigration policies that dehumanize those searching for a new life in the United States. To ensure that Black and Brown and disenfranchised voters never get the opportunity to make their voices heard at the ballot box.
Unless we stop them.
Article III, Section 1 of the United States Constitution empowers Congress to determine the size of the Court. In this moment of crisis, with the fate of our democracy on the line and a Republican-packed court, we can and must use that power.
That is why on Thursday we are introducing The Judiciary Act of 2021 in both the US House of Representatives and the Senate. Our legislation is simple: it adds four justices to the Supreme Court. When President Biden nominates people to fill those seats and the Senate confirms them, we will break the Court’s far-right, anti-democratic majority. We will have a 13-member Court, reclaiming a rightful majority of justices appointed by Democrat presidents, and one committed to government by the people instead of government by the powerful.
Although this moment is unprecedented, our proposal is not. Court expansion has deep roots in American history. In fact, Congress has adjusted the Court’s size seven times before. Thomas Jefferson added a seat to undo his predecessor’s partisan bid to steal one. Abraham Lincoln, Ulysses S. Grant, and the Reconstruction Congress changed the Court’s size three times to help defeat white supremacy.
While House Speaker Nancy Pelosi would not commit to bringing our proposal to the floor, she did say “it’s an idea that should be considered” and supported the White House commission to study the possibility of expanding the Supreme Court. But the time for studying this issue has long since passed. It’s time for action.
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Expanding to 13 justices would undo the Republican court packing of the last five years. It would restore our right to choose the world we want to live in, a world where we protect the right to vote as sacred. Where reproductive justice is a reality. Where the human rights to a livable planet matter more than the corporate “rights” to profit and plunder.
Americans are entitled to an equitable, inclusive, multiracial democracy. Unless we expand the Supreme Court and end minority rule, that democracy will remain out of reach.
