WASHINGTON — At 33 and not yet a member of the House of Representatives, Mondaire Jones might not seem like the obvious choice to lead Congress in the fight to expand the Supreme Court — but come January, he hopes to do just that.
“There's not been a leader on this issue in the House of Representatives. I'm excited to be the point person in the House of Representatives on this subject area,” Jones said in an interview with BuzzFeed News on Monday. “I think that [reform like this is] the only way that we can have durable progressive legislation that will stand the test of time when faced with opposition from political hacks on the Supreme Court and in the lower courts.”
Jones won the primary to replace New York Rep. Nita Lowey earlier this year, garnering endorsements from Rep. Alexandria Ocasio-Cortez and Sens. Bernie Sanders and Elizabeth Warren. The district is heavily Democratic, so Jones is expected to win the seat in November. He and Ritchie Torres, another Democratic congressional nominee in New York, are likely to become the first two openly gay Black members of Congress.
And for months, he’s made expanding the number of justices on the Supreme Court central to his progressive agenda. It’s an idea that has gained increasing traction among Democrats in Congress and liberal groups following the death of Justice Ruth Bader Ginsburg last Friday and Senate Majority Leader Mitch McConnell’s vow to hold a vote on her replacement this year.
“It is time we do something about the Roberts court's assault on democracy. Expanding the Supreme Court is our only option,” Jones wrote in an opinion column published by Salon in April. “Court expansion would not cause a death spiral of democracy. That death spiral is already here. And it will only get worse if we do nothing.”
Now, in the wake of Ginsburg’s death, Jones is reiterating his call, pushing for 13 seats on the Supreme Court instead of the current nine — and calling on former vice president and current Democratic nominee Joe Biden to join him in that fight. Biden hasn’t spoken on the issue since Friday but has previously argued against court-packing, saying it would set a dangerous precedent and “come back and eat us alive.”
“It is the case, and has been for many years now, that there is a hyperpartisan conservative majority on the Supreme Court of the United States that is hostile to democracy itself and the will of Congress,” Jones told BuzzFeed News on Monday. “There has not been a democratic institution that Justice Roberts and his majority has not been hostile to, whether it's systems of public financing of elections, or efforts to make it easier for folks who are eligible to vote to have their voices heard.”
Even under a Biden presidency and with Democrats in the majority in both chambers, Jones worries that the Supreme Court could still be a major impediment to a progressive agenda.
“I know that in 2021, when Democrats have unified control of the federal government, that we will still have as a major obstacle having the progressive legislation that we enact upheld when it is challenged in the Supreme Court,” he said. “If democracy is to be preserved, we have to expand the size of the Supreme Court and restore balance. … Roe v. Wade, the civil rights of LGBTQ people like myself, [and] the civil rights of racial minorities like myself are all at risk of being abridged by what may end up being a 6–3 conservative bloc on the Supreme Court.”
The idea of expanding the court has attracted new disciples in recent years, after Senate Majority Leader Mitch McConnell refused to hold hearings or a vote on then-president Barack Obama’s Supreme Court nominee, Merrick Garland, in the eight months leading up to the 2016 election. McConnell argued at the time the next president needed to be the one to replace the late Justice Antonin Scalia, who died in February that year.
Now, with just weeks to go before the election, McConnell has announced that President Donald Trump’s nominee to replace Ginsburg will get a vote on the Senate floor. (McConnell argues that he blocked Garland not only because it was an election year but because the Senate and the White House were controlled by different parties.)
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Sen. Ed Markey tweeted Friday night. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Several other congressional Democrats, including Jerry Nadler, chair of the House Judiciary Committee, echoed that call.
“If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” Nadler tweeted Saturday.
Jones’ own plan to expand the court would entail adding four additional justices to the court, bringing the total number to 13. “Just seven folks with good conscience,” he said of his proposed new bloc.
“Unfortunately, the five people in the majority right now are not acting in good faith,” he added. “And I am under no illusion that someone nominated with two days of due diligence by Donald Trump and then rammed through in a month's time to be confirmed by the Senate to the Supreme Court is someone who would be materially different from the five people who already are acting in bad faith. This is a constitutional crisis that has existed for years now.”
While the House does not play a role in confirming justices, both chambers of Congress would need to pass legislation to expand the court. “This is squarely within what will be my jurisdiction as an incoming member of the House,” he said.
But Biden’s mind might be harder to change on the issue of court-packing than Jones hopes. On Sunday, the Washington Post reported that the calls to expand the court, particularly Markey’s, have frustrated some of Biden’s campaign advisers.
Biden said last year that if Democrats move to expand the court, “We’ll live to rue that day.” But Jones says his party is already living that reality.
“Democrats are already ruing the day,” he said. “I think Democrats rue every day. … I disagree with those words by Vice President Biden over a year ago. And my expectation is that he will change his opinion now.”