GOP state attorneys general urge Biden, Congress not to expand Supreme Court

A coalition of 20 Republican state attorneys general are demanding that President Biden and congressional leadership not expand the Supreme Court, a proposal that has gained increased support among progressives. 

The attorneys general expressed their opposition in a Thursday letter sent to Biden, Speaker Nancy Pelosi (D-Calif.), House Minority Leader Kevin McCarthy (R-Calif.), Senate Majority Leader Charles Schumer (D-N.Y.) and Senate Minority Leader Mitch McConnell (R-Ky.). 

They were responding to Biden’s creation earlier this month of a commission to study potential changes to the high court, as well as a House bill introduced last week seeking to enlarge the top judicial body from nine seats to 13. 

While the Democrats behind the bill argue it would help restore balance to the court, which currently holds a 6-3 conservative majority, the Thursday letter argued that both the commission and the bill are a “coordinated attempt to justify a naked political power grab by the leaders of Congress and the President.”

“We believe that such actions will seriously undermine our constitutional system, the public’s confidence in our courts, and the rule of law,” said the GOP attorneys general, which include Ashley Moody of Florida, Alabama’s Steve Marshall and Christopher M. Carr of Georgia. 

The state leaders then quoted one of Alexander Hamilton’s entries in the Federalist Papers, in which he wrote “[t]he complete independence of the courts of justice is peculiarly essential in a limited Constitution.” 

“From the beginning of our Republic until the present, there has been a robust history of judicial independence,” the attorneys general continued, adding that when former President Franklin D. Roosevelt “attempted to pack the Court, the Senate recognized the importance of an independent judiciary and the harm that such an action would cause.” 

“The Justices of the Supreme Court have repeatedly shown their independence, despite their differences and labels some have put on them,” they argued. “When elected officials do not like the outcome in a case, that is not a sign of politicization of the Court, but of the system working.” 

“After all, the whims of elected officials are the very thing against which the Court is there to protect the people,” they concluded. 

The calls to expand the court have gained support in recent months, especially after former President Trump nominated now-Justice Amy Coney Barrett just before the election in the wake of the death of Justice Ruth Bader Ginsburg. 

Democrats accused Republicans of hypocrisy because Senate Republicans denied then-President Obama the ability to fill a vacancy in early 2016 on the premise that a seat should not be filled in an election year. 

However, Republicans argued at the time that the situation was different in 2020 because both the White House and Senate were controlled by the same party. 

While Democratic lawmakers have seen Biden’s formation of a Supreme Court commission as moving toward expanding the high court, he has previously expressed resistance to the move, and the commission is not specifically tasked with making a formal recommendation to Congress.