Can Democrats Expand the Supreme Court and How Likely Is it?

The Supreme Court's decision to overturn Roe v. Wade has revived calls among progressive Democrats to expand the size of the nation's highest court, in what they say would be a move aimed at re-establishing some balance in the institution now dominated by a conservative supermajority.

Newsweek asked two experts —retired judge Nancy Gertner and assistant professor at the University of Wisconsin Law School Joshua Braver—to explain whether adding more justices to the Supreme Court is possible at all, how likely such a move is to succeed and why some Democrats are asking for it to happen, while others oppose it.

Has The Court Been Expanded Before?

The Constitution does not set a specific size for the Supreme Court, and its current number of nine justices is just a 150-year-old practice.

"The Constitution is pretty brief. All it basically says is there shall be one Supreme Court," explained Joshua Braver, an expert in court-packing, a term used to define the practice of changing the size of the court.

"So much about the Constitution was a first. And many things about the Supreme Court were a first. And so the founding fathers hadn't really thought about the size of the Supreme Court," he said. "They weren't particularly sure about the role the Supreme Court was going to play, and they weren't particularly worried about it because I don't think they imagined that the Supreme Court would play a particularly prominent role in American politics. It was kind of the least prestigious branch at the time."

In its history, the size of the Supreme Court has been changed seven times. Most of these changes happened to make the court able to process many more cases as the court system changed, increasing the number of justices.

Some other changes —only two— were political, and these are the ones we think of when we talk about "court-packing," said Braver.

Can Democrats Expand the Supreme Court
Can Democrats expand the Supreme Court. An activist, who declined to provide her name, speaks outside the Supreme Court in protest against the new Texas abortion law that prohibits the procedure around six weeks into a pregnancy on September 2, 2021 in Washington, DC. Getty

"In 1801-1802 the Federalists are on their way out. They lose in the revolution of 1800 and the election to Jefferson, and they're really afraid of Jefferson," explained Braver.

"If you can bring the French Revolution to American shores, they think he's going to make the heads of elites roll. And when a vacancy pops up in the court in this lame-duck session, they disappear a seat," says Braver.

This attempt at reducing the size of the court was a failure, as Jefferson just restored the seat. But another attempt in 1866 succeeded when Congress passed a reduction of the court size from ten to seven justices after the Civil War in an attempt to block Andrew Johnson from giving Black people rights.

Why Are Some Calling To Expand The Supreme Court?

Gertner, who was appointed to the bench by Bill Clinton in 1994 and is now a professor at Harvard Law School, is among the ones calling for an expansion of the court.

"It's more than just 'I don't like this decision,' or 'I don't like these judges,'" Gertner said, talking about the recent ruling that overturned Roe v. Wade.

"It really is a combination of things that means that this court, this very powerful court and this very, very conservative court will be a court we will be living with for decades to come," she said.

Gertner explained that while the Supreme Court set-up changes over time, with a president likely having one or two appointments during their administration and appointments being spread around Republican and Democratic administrations, this is not the way the current court's set-up came to be.

"Three justices in the court were, in the view of many, illegitimate appointees," said Gertner.

"Mitch McConnell said that he would not hold a hearing for Biden appointees, wouldn't hold a hearing for Merrick Garland [in 2016]. So Gorsuch was appointed [in 2017]," the retired judge says.

In the case of Merrick Garland, "McConnell said [he was not appointed] because it was too close to an election. And yet Amy Coney Barrett was confirmed while people were voting," said Gertner, explaining that many believe these appointments to be "illegitimate."

"In effect, the Republicans packed the court," Gertner said.

The retired judge thinks that the current set-up of the Supreme Court is bound to stay, as she said the court is ruling to enable Republican legislatures to constrict the vote across the country, "essentially to disallow Democratic votes."

"The expansion wouldn't guarantee a Liberal court, the expansion would guarantee other voices on the court —whoever is confirmed, whoever is supposed to have to be confirmed. But it will at least mean that the makeup of the court will change," said Gertner. "So it will not be six Republican appointees and three Democrats. It will six Catholic judges, one Presbyterian and two Jews."

How Likely Is It That The Supreme Court Will Be Expanded?

Precedents prove that the size of the Supreme Court can be changed. But will it? The problem is not a technical one.

"It takes only legislation, as in it does not require a constitutional amendment," explained Gertner. "Someone would have to propose legislation expanding the court. The legislation would then have to be approved by the House and approved by the Senate."

"In the Senate, there will be a problem because the Democrats are not united on expanding the court, and even if they were, there would be a filibuster," Gertner said. "And so there are technical hurdles here. They would need 60 votes as opposed to 51 votes to expand the court. So the chances of that happening in this session are not high."

"The legislation would have to pass both houses of Congress and be signed by the president," he said.

Biden has so far indicated that he opposes an expansion of the court.

"The first question is, do they [Democrats] have the votes? Do they have support? And the answer is no, they don't. They don't have the support at all," said Braver of those calling for an expansion of the court.

"The Democratic Party, unlike the Republican Party, is a diverse party. And because the electoral map is tilted against them, because Republicans have systematic advantages in the Electoral College, in the Senate, and even in the House of Representatives, Democrats have to appeal to moderate voters. And the thought at least, is that moderate voters are unlikely to like something like court-packing," said Braver. "If you're going to pull off something like court-packing, ideally, at least you need to have overwhelming electoral firepower."

A recent poll, following the ruling that overturned Roe v. Wade, found that a majority of Americans oppose expanding the Supreme Court.

Last year, a group of Democrats —including Representatives Jerrold Nadler of New York, Hank Johnson of Georgia, Mondaire Jones of New York and Senator Ed Markey of Massachusetts— tried to pass a proposal to expand the number of seats on the Supreme Court from nine to 13.

The move was attacked by Republicans and criticized as court-packing.

"The danger of court-packing is it leads to tit-for-tat escalation in which whenever one of the two parties has both the presidency and the Congress, they expand the court, [which] balloons the court's size so large that its legitimacy pops," Braver said.

"If Dems choose to pack the Court, it needs to be part of a comprehensive plan to reform the American constitutional system to rid it of Republican's systematic advantage in elections," he added.

"That means adding new states, changing the electoral college, fixing the primary system and passing a new voting rights bill. That would allow Dems a fighting chance of stopping Republicans from gaining unified government and packing back. And a more democratic electoral system means Republicans could no longer just appeal to the most radical right-wing voters. That would make revenge less likely."

"But since Democrats lack the will to do such a complete package, not even close to mustering the determination to pull of something that radical, I think court-packing is unwise and counter-productive," said Braver.