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S. 1141: Judiciary Act of 2021

In this case, is 13 actually a lucky number?


Consecutive presidents Bill Clinton, George W. Bush, and Barack Obama each got two Supreme Court justices confirmed by the Senate during their presidencies. Their successor Donald Trump, though, got three — despite serving fewer years than any of those predecessors.

Those three justices made the Court much more ideologically conservative, particularly because two of them replaced a centrist and a left-leaning justice rather than a fellow conservative, leading to fears that the Court could overturn hallmark decisions like Roe v. Wade.

Some argue that the confirmation of one single justice shouldn’t have the power to fundamentally reshape the country so dramatically, as 2020’s replacement of Ruth Bader Ginsburg with Amy Coney Barrett potentially could.

GovTrack Insider previously covered a proposed Republican-led constitutional amendment that would have prevented the Supreme Court from expanding beyond nine justices. Since that has not been enacted, the expansion option remains a live one.

What the legislation does

The Judiciary Act would expand the Supreme Court from nine to 13 justices.

If enacted during this Congress, those four justices would be nominated by President Joe Biden and subject to confirmation by a Democratic-led Senate, likely leading to four more left-leaning justices. That would more than cancel out the three most recent justices, who were all nominated by a Republican president and confirmed by a Republican senate.

The House version was introduced on April 15 as H.R. 2584, by Rep. Hank Johnson (D-GA4). The Senate version was introduced the same day as S. 1141, by Sen. Ed Markey (D-MA).

What supporters say

Supporters argue that not only would an expansion dilute the power of any one individual justice, but it would restore the Supreme Court to its original formulation of one justice per appeals court (the judicial level below the Supreme Court).

“It’s easy to take for granted that the number of justices on the Supreme Court must be nine. But it is not written in the Constitution and has changed seven times over the course of this country’s history,” Rep. Johnson said in a press release. (Indeed, the number of justices fluctuated for the country’s first several decades, though it’s remained at nine since 1869.) “Thirteen justices would mean one justice per circuit court of appeals, consistent with how the number of justices was originally determined, so each justice can oversee one circuit.”

“It’s time that we start thinking about the Supreme Court like we think about the rest of the federal government,” Rep. Johnson continued, “and consider whether and how its current composition allows it to effectively do what we need it to do — efficiently and effectively administer justice and uphold the rule of law.”

What opponents say

It’s not just Republicans who oppose this; the most senior Democratic-appointed Supreme Court justice, Stephen Breyer, also expressed concern.

“What I’m trying to do is to make those whose initial instincts may favor important structural change or other similar institutional changes, such as forms of court packing, think long and hard before they embody those changes in law,” Breyer said in an April speech for Harvard Law School.

“I hope and expect that the Court will retain its authority, an authority that… was hard won. But that authority, like the rule of law, depends on trust — a trust that the Court is guided by legal principle, not politics,” Breyer continued. “Structural alteration motivated by the perception of political influence can only feed that latter perception.”

Odds of passage

The House version has attracted 20 cosponsors, all Democrats. It awaits a potential vote in the House Judiciary Committee — whose chair, Rep. Jerrold Nader (D-NY10), has signed on as a cosponsor, indicating it will likely receive a vote in committee.

The Senate version has not yet attracted any cosponsors. It awaits a potential vote in the Senate Judiciary Committee.

Politico recently reported that the legislation does not appear to have enough support for passage among Democrats, as Speaker Nancy Pelosi (D-CA12) and President Joe Biden are both skeptical.

Last updated May 17, 2021. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Apr 15, 2021.

Judiciary Act of 2021

This bill increases from 9 to 13 the number of Justices on the Supreme Court.