Packing the Court - A Political Pipe Dream

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History of the Supreme Court

Article III of the U.S. Constitutions (1787) provides for the establishment of a Supreme Court, considered the third branch of the federal government. However, while the Constitution provided a general design for the court as well as insight into the Court's responsibilities, it was left to Congress and the president to fill in the blanks.  Article II of the Constitution places nomination of justices in the president's hand with the Senate providing Advice and Consent prior to the justice taking the bench.  After the Constitution was ratified by the states (1788), Congress set about to fulfill its constitutional duties, passing the Judiciary Act of 1789. The legislation established six seats on the Supreme Court and those seats were filled by George Washington's nominees with John Jay serving as the first chief justice. That Court first convened on February 2, 1790.

Between 1789 and 1869 the number of justices fluctuated between 5 and 10 justices depending on the mood and composition of Congress. Finally, it was The Judiciary Act of 1869 that set the number of Supreme Court justices at 9 where it has remained for the last 157 years. This number has, over the years, seemed reasonable since it was a number sufficient to offer reasoned and thorough deliberation while the odd number served to prevent deadlocks.

Current State of the Court

Despite the long-term presence of 9 justices, there has been much discussion over the last few years from the Democrat side of the political aisle over the idea that the number of justices should be increased from 9 to a total of 13 justices. This has pretty much been the liberal mantra since Bret Kavanaugh replaced Justice Anthony Kennedy in 2018 following Kennedy's retirement at age 81. Kennedy was considered a swing voter on the court, sometimes siding with more conservative justices and other times taking a relatively liberal stance.

When Brett Kavanaugh, a purported conservative-leaning justice, replaced Kennedy, it gave the Court a much more conservative (constitutionalist) bent, which left the Democrats angry and dejected. They had been used to having a Supreme Court that, for the past several decades, delivered far more liberal than conservative rulings. With four relatively solid conservatives on the bench (Thomas, Alito, Gorsuch, and Kavanaugh), along with a pseudo conservative chief justice (Roberts), the Democrat agenda, which has often been accomplished through Supreme Court rulings rather than legislation, was in jeopardy.

Ruth Bader Ginsburg served as a justice on the Court beginning in 1993. She was known for her liberal rulings, so her position on the Court was valuable to the liberal agenda. However, concerned about her age and her health, she had been encouraged by Democrat voices during the Obama administration and early in the Biden administration to step down so that her replacement could be appointed by a Democrat president. This, they believed, would assure the Democrats of four liberal justices on the Court for at least another decade or so. However, Bader Ginsburg was a stubborn woman who refused to step down. Then, unfortunately for the Democrat Party, Ms. Bader Ginsburg passed away in 2018 when Donald Trump was president. This meant that Donald Trump was in a position to name a replacement at which time he selected Amy Coney-Barret - a woman considered a staunch constitutionalist.

Calls for Court Expansion

Since the appointments of Kavanaugh and Coney-Barret, it can be said that the Court has arguably offered more decisions with substantive constitutional support (e.g., Roe v. Wade), although there have been times when poorly reasoned decisions have been made where the Court seemed to offer a political fig leaf to liberals. Still, that has not been sufficient for the Democrat Party. The voices calling for increasing the size of the Court and packing it with liberal-minded justices have become louder over the past few years. In fact, it is a position taken by several Democrats who are running for office in 2026 as well as some who have plans to seek the office of president in 2028.

Opportunities for Court Expansion

Despite the calls to increase the size of the Supreme Court and add liberal justices, this is not quite as easy as the public might think. It would take an act of Congress to increase the number of justices on the Court. Currently, however, Republicans hold the majority in both legislative chambers and Republicans are not particularly inclined to make that move. Indeed, Republicans seem to be content with 9 justices on the Court. Consequently, as long as Republicans are in charge, it is highly unlikely that any change will be made.

The 2026 mid-terms are on the horizon, and many people speculate that Democrats could end up taking the majority in both the House of Representatives and the Senate. Should that happen, is it possible that the legislature could pass a bill increasing the size of the Supreme Court? It is remotely possible, but this is still not likely to happen. There is perhaps a 50/50 chance that Democrats could end up taking the majority in the House of Representatives after the coming election, but it is highly unlikely that they will take the majority in the Senate. As long as Republicans hold a majority in one of the legislative chambers, there is no chance that America will see an increase in the size of the Supreme Court.

Should the Democrats take the majority in both chambers in 2026, they would undoubtedly wish to expand the Supreme Court. Unfortunately for the Democrat Party, such an increase, like any other piece of legislation, would require presidential approval. However, Donald Trump, as president, would surely veto such a proposal. Were they to win both chambers, the Democrats would have a majority in the legislature by only the slimmest of margins, falling far short of the 2/3 majority necessary to override a presidential veto.

Imagine, however, that President Trump decided to approve expansion of the Court (this would require quite an imagination). Trump will be President until January 2029. This means that Trump would be in charge of nominating justices for the Supreme Court until the end of his term. Naturally, a Democrat majority in the Senate would refuse to seat any of Donald Trump's nominees on the bench, which means that, at least until 2029, the number of Supreme Court justices would remain unchanged.

In 1937, as Franklin Roosevelt sought to push through his New Deal legislation, the justices on the Supreme Court presented a roadblock since much of that legislation conflicted with the constitutional principle of a minimal role for the federal government. According to the Court, the Constitution prohibited the federal government from expanding its authority beyond specific constitutional limits, and the New Deal eclipsed those limits. When this happened, Roosevelt threatened to expand the Court and install new justices who would ignore the Constitution and approve his legislation. However, those were different times. At the time, Democrats held roughly 77% of the seats in the House of Representatives and about 81% of the Senate seats. Consequently, Roosevelt was in a position to make bold demands of the Court without respect to the constitutionality of those demands.

The situation in 2026 is far different from 1937. Rarely does either party control the House or the Senate by more than a few seats, so reaching the threshold necessary to make substantial legislative moves is a challenge. The most achievable scenario for the Democrats when it comes to expanding the Supreme Court would be to take the majority in both legislative chambers and win the presidency in the 2028 election. Still, there is a major stumbling block, and we will need to see how it plays out.

In all likelihood, Republicans will remain in control of the Senate after the 2026 mid-terms. Looking ahead to 2028, most Republican seats that are up for renewal at the time are in conservative-leaning states that are considered relatively safe for the Republican Party. Consequently, even if Democrats were to win the presidency in 2028, the Senate will most likely be controlled by Republicans. This means there will be seemingly little chance to expand the Court during the current decade

Democrats could have the narrowest of openings to make changes to the Court between 2030 and 2032 if 1) they win the presidency in 2028, 2) they hold a majority in the House of Representatives in 2030, and 3) they win a majority in the Senate in 2030. However, that window will remain open for only two years. Beginning in 2032, the numbers from the 2030 census will result in a new electoral map giving conservative states far more representation n the House of Representatives and a greater number of electoral votes where the presidency is concerned. Consequently, beginning in 2032, it will be extremely difficult for Democrats to win either the presidency or the majority in the House of Representatives. This means that Democrats' only opportunity to expand the Court rests on winning the presidency in 2028 and winning the majority in both chambers of Congress in 2030. Even then, if that window is opened, it will likely be closed permanently in 2032.

Weighing the Future of the Court

It is possible, and even likely that over the next ten years we will see certain justices retire from the Supreme Court. After all, Chief Justice Roberts and Justices Thomas, Alito, and Sotomayor are all in their 70's. How those potential vacancies impact the composition of the Court will depend to a large degree on who occupies the oval office at the time. Still, it is unlikely that Thomas or Alito will step down while a Democrat holds the presidency and it is equally unlikely that Sotomayor will retire without a Democrat in the White House. 

Democrat politicians often speak boldly of expanding the Supreme Court, but they are also fully aware that there will likely be no opportunity for that to happen - at least, not in the near future. This means that all the talk about making such a move is simply political speech intended to gin up support from voters who are completely oblivious to these political realities. Still, who can blame them for offering their supporters a glimmer of hope concerning the Supreme Court even though the politicians know it is but a pipe dream? After all, ginning up support is the name of the game where politics is concerned, and it usually has little to do with reality. Still, as I see it (and I am no statistician or oddsmaker), it seems the odds are heavily against any expansion of the Supreme Court in the foreseeable future.

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