Senator Ed Markey of Massachusetts is making no secret of his desire to reshape the Supreme Court. The veteran Democrat recently outlined a legislative proposal that would add four justices to the nation's highest court, bringing the total from nine to 13, with the explicit goal of swinging the ideological balance leftward under a future Democratic president and Senate.
During an appearance on MS-NOW, Markey argued that Republicans effectively "stole" two Supreme Court seats in 2016 and 2020, creating what he called an illegitimate supermajority. His solution? Pack the bench. "The only way to solve this problem in a very short period of time is to expand the Supreme Court by four seats, up to 13," Markey said in remarks first covered here. He added that such a move would "restore the 7-6 majority, which should be in place right now."
Critically, Markey emphasized that expanding the Court does not require a constitutional amendment. It can be accomplished through ordinary legislation, which is precisely what he has been pushing. He told viewers the issue needs to be "at the top of the agenda" and confirmed he is actively lobbying fellow Democratic senators to get on board. Some colleagues, he acknowledged, have not yet committed to supporting the idea.
This is not Markey's first go at this. He introduced the Judiciary Act of 2023 during the 118th Congress as S. 1616, with a companion House version, H.R. 3422, led by Representative Hank Johnson of Georgia. That effort drew support from Senators Tina Smith of Minnesota and Elizabeth Warren of Massachusetts, along with House members including Jerry Nadler, Cori Bush, and Adam Schiff. The bill proposed amending Title 28 of the United States Code to increase the Court's composition from one chief justice and eight associate justices to one chief justice and twelve associate justices.
Supporters of the expansion have pointed to the fact that there are currently 13 federal judicial circuits, arguing that having one justice per circuit would mirror early American practice when justices were assigned circuit-riding duties. It is a tidy justification, though skeptics might note it conveniently produces the exact partisan outcome Markey is seeking.
The 2023 version of the bill never made it past committee referral. As of now, no updated version has been introduced in the current Congress, and no new co-sponsors have publicly signed on following Markey's latest comments.
The broader concept of court packing has been a recurring topic among progressive lawmakers for years. The Constitution itself does not specify how many justices should sit on the Supreme Court. Article III simply establishes "one supreme Court" and leaves the rest to Congress. Over the course of American history, lawmakers have changed the Court's size seven times. The most recent adjustment came in 1869, when Congress settled on nine justices, a number that has remained unchanged for more than 150 years.
Whether Markey can build enough momentum to break that streak remains very much an open question. For now, the proposal serves as both a legislative blueprint and a rallying cry for Democrats who believe the Court's current makeup is fundamentally unfair.
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