WASHINGTON — President Joe Biden inherited dozens of federal court vacancies to fill when he took office, and more seats already are opening up, but liberal groups are ramping up efforts to convince the White House and Congress that it’s not enough.
Faced with a 6–3 conservative majority on the US Supreme Court and 200-plus lower court judges confirmed under former president Donald Trump, a new coalition of liberal groups called “Unrig the Courts” is launching this week with the goal of building public support and political momentum for dramatic structural changes, BuzzFeed News has learned. They’re advocating adding seats to the Supreme Court and the lower courts, and imposing term limits and more stringent ethics and transparency rules for the high court’s justices.
Adding more judgeships, or “court-packing,” is the most politically explosive item on their list. A largely dormant idea since former president Franklin Roosevelt tried, and failed, to add seats to the Supreme Court in the 1930s, it started gaining traction again among Democrats as Trump filled the federal bench. But Biden has said that he doesn’t support it, and Democrats’ slim new majority in the US Senate leaves little wiggle room — West Virginia Sen. Joe Manchin, a Democrat, has also said he’s against adding judgeships.
Still, Aaron Belkin, founder of Take Back the Court and a driving force behind the left’s court reform push, said the new coalition will focus on gaining support at the grassroots level — buying ads and organizing events and outreach — as well as “aggressively” lobbying Congress and the White House. He believes more Democrats will get on board if the Supreme Court and lower court judges confirmed under Trump block Biden’s progress on issues that matter to his base, like abortion, civil rights, and immigration; less than a week after Biden was sworn in, a federal judge in Texas nominated by Trump issued an order blocking Biden’s temporary freeze on deportations.
“There are only two years on the clock to address the emergencies we face, and the politics are going to change very rapidly as the administration and progressives see that the Supreme Court and lower courts are going to handcuff the agenda from day one,” Belkin said, referring to the potential for Republicans to retake control of the Senate in the 2022 midterm elections.
Biden came into the White House with far fewer federal court vacancies than Trump inherited in January 2017; then–Senate majority leader Mitch McConnell had blocked nominees from moving forward during former president Barack Obama’s final years in office. More seats are expected to open up for Biden — there have been nine new vacancies announced already since Inauguration Day, mostly judges confirmed under former president Bill Clinton — but the number of potential vacancies is unlikely to match Trump’s first-term confirmations.
Unrig the Courts and other supporters of court-packing are making the case that it’s the only way to undo Trump’s legacy on the bench. The new coalition features eight organizations: Take Back the Court, Demand Justice, and the People’s Parity Project, groups focused on the courts and legal system that launched under Trump, and progressive policy groups 51 for 51, Demos Action, Indivisible, Just Democracy Coalition, and Stand Up America.
Molly Coleman, executive director of the People’s Parity Project, said the group signed on to make the case that reshaping the ideological balance of the courts is critical to advancing every issue that Democrats care about. Her organization, for instance, which had been using the slogan “unrig the courts” for its advocacy work around diversifying the federal bench, focuses on issues affecting consumers and workers.
“If you care about corporate influence in the United States, if you care about these systems of oppression and changing them, you have to change the courts,” she said.
The latest court-packing drive arguably kicked off with a question that Belkin’s group planted at a Philadelphia campaign event for Pete Buttigieg in February 2019; Buttigieg said he was open to the idea, and it became a live issue for other candidates throughout the Democratic presidential primaries. Biden said he was opposed.
“If we pack the court, it’s going to come back and eat us alive,” Biden said at an event in July 2019.
But as Democrats watched in dismay last fall as Trump and McConnell moved at record speed to confirm Justice Amy Coney Barrett for the late justice Ruth Bader Ginsburg’s seat, pressure mounted on Biden to reconsider, or at least keep an open mind. He told CBS in October that he would create a bipartisan commission of constitutional scholars to study court reform options and make recommendations. The White House hasn’t announced the status of Biden’s commission so far. A White House official told BuzzFeed News that Biden "remains committed to examining options to reform our judicial system and will have more to say on it in the coming weeks."
"The last thing we need to do is turn the Supreme Court into just a political football, whoever has the most votes gets whatever they want," Biden told CBS. "Presidents come and go. Supreme Court justices stay for generations."
Ginsburg’s death spurred some Democrats in Congress to publicly announce support for court-packing. Newly elected New York Rep. Mondaire Jones made his support for court-packing a central feature of his congressional campaign and pledged to put forward a plan to add four more seats to the high court.
But the Democratic Party isn’t united behind it. The platform adopted at last year’s Democratic National Convention called for “structural court reforms” for the first time but didn’t advocate any specific plans. Some liberal and court watchdog groups have prioritized term limits instead, which they see as a more achievable goal. Senate Majority Leader Chuck Schumer said on MSNBC this week that he supports adding more judgeships to the lower courts — the federal judiciary for years has asked Congress for more judges to keep up with caseload demands — but would wait to see what Biden’s commission recommends for the Supreme Court.
“I think people are torn,” Schumer said, when asked where members of his party stood on court expansion. “Let’s see what the report says.”
Republicans, meanwhile, used growing Democratic support for adding seats to the courts to rally voters against Biden during the election, and are expected to oppose any effort to add seats or otherwise undermine Trump’s success getting young, conservative judges confirmed. McConnell accused Democrats of using the possibility of court expansion as leverage to apply “improper pressure” to Republican-appointed judges.
Meagan Hatcher-Mays, director of democracy policy for Indivisible, another member of the new Unrig the Courts coalition, said Trump and McConnell’s push on nominations over the past four years helped civil rights and liberal advocacy groups convince Democrats to prioritize courts as much as conservatives have for decades. Ginsburg’s death “twisted the knife,” she said, and there’s been an “uptick” in interest in court expansion from its members since then.
“There’s an urgent threat facing our judiciary, and so we need an urgent response,” she said.