Rep. Cindy Axne (D-IA) regurgitated a false accusation during a radio interview, saying Democrats in the House have “no jurisdiction” over efforts to pack the Supreme Court by expanding the number of justices from nine to thirteen. This is clearly false, as the full House and Senate could vote on the bill introduced by Rep. Jerrold Nadler (D-NY), establishment media outlet the Washington Post pointed out in a fact-check, giving the congresswoman Four Pinocchios.
Axne, as one of the vulnerable Democrats in the House, tried punting a question on court packing during her interview with Iowa Public Radio in an attempt to shield herself from a possible “slip-up” or backlash. Axne was asked whether she would be in favor of expanding the Supreme Court to 13 seats. This would ultimately allow the four new vacancies to be filled immediately by President Joe Biden and the Democrat-controlled Senate to pack the court.
During her interview, Axne said since President Joe Biden has created a commission to study court packing:
I’m not going to get ahead of him on this issue. The president’s working on this, and as a member of the House, too, I’d let folks know that we have no jurisdiction over this. This falls directly to the Senate, so I’m going to let them, you know, deal with this.”
To formally change the configuration of the Supreme Court requires legislation. This means both chambers must vote and pass a bill, which is then sent to the president for signature upon passage. Therefore, Axne as a member of Congress does have jurisdiction over the Democrats’ attempts to pack the Court.
Currently, Nadler, along with other sponsoring Democrats, introduced legislation to expand the Supreme Court from its current nine seats to 13 seats. If the full House and the Senate pass the bill, it will allow for the immediate appointments to the court.
Throughout history, the Post pointed out, Congress has changed the number of judges on the Supreme Court by legislation. They outlined the different acts Congress has used to change the size of SCOTUS throughout the years:
The Judiciary Act of 1789 created the first iteration of the Supreme Court, with six members. The number was modified by statute several times during the 19th century.
In 1801, Congress passed a law to reduce the high court’s membership to five members once a vacancy occurred. (This law was repealed before any seat went vacant, so the number went back to six.) In 1807, Congress increased the high court’s membership from six to seven justices when the seventh judicial circuit was created. In 1837, the court grew from seven to nine members, again, by an act of Congress.
The Supreme Court had its largest membership, 10 justices, set by statute during the Civil War under President Abraham Lincoln. An 1866 law later reduced that gradually to seven members. Finally, the Court’s membership was set at nine justices in 1870 and has not been modified in more than 150 years.
Furthermore, the Post added, “since the founding of the United States, the House has taken a vote each time a proposal was approved to expand or decrease the number of justices on the Supreme Court.”
The nonpartisan Congressional Research Service (CRS) has substantiated in a report, “The Constitution does not expressly grant Congress the authority to set or modify the size of the Supreme Court.”
The report later added that Congress does hold some power under the “Necessary and Proper Clause,” that would allow “Congress to legislate as needed to support the exercise of its enumerated powers and ‘all other Powers vested by th[e] Constitution in the Government of the United States,’ including those of the judicial branch.”
Ultimately, the Post reached out to Axne’s office to ask how she would be voting on the Nadler proposal but was left with no response, awarding Axne with “Four Pinocchios” as “it appears Axne is trying to hide the ball on this issue.”
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