To court pack, or not to court pack? That is the question Democrats are doing everything they can to avoid answering — even though Republicans have been successfully packing the courts for years.
After the GOP installed Amy Coney Barrett to the Supreme Court before the election, the Democrats ran away from answering queries about whether or not they would support expanding the supreme court. On April 15, 2021, Democrats introduced a bill to expand the Supreme Court from 9 to 13 justices.
Republicans have not suffered from such equivocation — instead, they have for years tried to pack the courts, both through contraction and expansion. In Washington, they have pushed to shrink the courts, and they have blocked Democratic presidents from filling judicial appointments — moves designed to increase the power of GOP-appointed judges already on the bench. In states, Republicans have pushed to expand the courts to increase their number of appointees.
At the Supreme Court level, Republicans stole a majority when they denied a hearing for President Barack Obama’s Supreme Court choice for 293 days before Trump took office, and placed Neil Gorsuch on the courts. They minted a more conservative majority with Brett Kavanaugh. Amy Coney Barrett and a six-to-three balance on the court, arriving via a grim bit of luck, would just be the icing on a decades-long, ultraconservative majority that threatens Americans’ reproductive rights, voting rights, labor rights, health care rights, and civil rights.
If Democrats have any interest in protecting Americans’ fundamental rights, they only have a few options. They can try using parliamentary tactics to successfully block Barrett’s nomination, which Senate Democrats have been reluctant to do, and they can add more court seats later. This is reality, and it’s precisely why Democrats are getting so many media questions about adding court seats.
The easiest way to talk about whether to expand the court is to cast it as an issue of values and policies that people actually care about. If — as they insist — Democrats are firmly committed to protecting reproductive, voting, labor, health care, and civil rights, it shouldn’t be difficult for any Senate candidate to say they will consider all options available to protect them, including expanding the court.
In that sense, Democratic support for expanding the court is synonymous with supporting popular, essential liberties like a woman’s right to choose, workers’ right to form unions, and Americans’ right to not be thrown off their health insurance because they have a preexisting health condition.
By contrast, Republicans only want to talk abstractly about the process and court size and not about policy — because their judicial nominees’ opposition to abortion rights, health care protections, and union rights are wildly unpopular.
Adding court seats to the Supreme Court is just one more area where Democratic politicians are lagging to the right of their voters. A Marquette University poll taken shortly before Supreme Court Justice Ruth Bader Ginsburg’s death found that 61 percent of Democratic voters support increasing the size of the court. Support for Democrats’ 2010 health care law, the Affordable Care Act — which the Supreme Court could strike down next year — is at a record high.
Democratic Senate members Jaime Harrison in South Carolina, Cal Cunningham in North Carolina, Mark Kelly in Arizona, Jon Ossoff in Georgia, Theresa Greenfield in Iowa, Sara Gideon in Maine, and John Hickenlooper in Colorado — have said outright that they oppose adding judges to the court. Nancy Pelosi also came out against the expansion.
Steve Bullock stated that he would consider expanding the Supreme Court. Bullock rejected the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court, saying it could put parts of the Affordable Care Act in jeopardy. Daines has expressed support for a court case seeking repeal of the health law, which is set to be heard by the court days after the Nov. 3 election.
Bullock said, at the time, if Coney Barrett was confirmed, he would be open to measures including adding justices to the bench.
“We need to figure out the ways to actually get the politics out of the court,” Bullock said. “That’s anything from a judicial standards commission, or we’ll look at any other thing that might be suggested, including adding justices.”
Republicans were quick to attack Bullock for this position, but there is little evidence that the exact number of justices on the court is some top-of-mind concern among voters. There’s absolutely zero evidence that voters want the Supreme Court stuck at nine justices, even if that means those justices doing wildly unpopular things, like throwing out protections for preexisting medical conditions.
The Number of Supreme Court Justices Is Not Fixed
Of course, any legislation to expand the court will inevitably be met with GOP claims that Democrats are violating the Constitution. However, expanding the court is totally consistent with Congress’s enumerated powers.
“Under the Constitution, the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act that is then signed by the President,” wrote Scott Bomboy, the executive director of the National Constitution Center. “Article III, Section 1, starts with a broad direction to Congress to establish the court system: ‘The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’”
Over two centuries, the court’s size has been adjusted. If the founders wanted the court permanently set at nine justices, they would have put that into the Constitution. They didn’t. They gave Congress the flexibility to adjust the court’s size. That power allows the legislative branch to make sure that the court doesn’t become a star chamber totally disconnected from the public will.
In light of that, if a Democrat like Bullock can make a sober-minded case for court expansion in a deep red state like Montana, then any Democratic candidate should be able to make a similar case.
Refusing to make that case — or running away from questions about court expansion — is not just cowardly, it is politically stupid. It forsakes an opportunity to turn a conceptual battle over the Supreme Court into a much more tangible, down-to-earth battle over policies that affect people in their daily lives.
Republicans don’t want to talk about those policies, but Democrats should.