How Democrats Could Pack the Supreme Court—and How the GOP Could Stop Them

Democrats in the House and Senate are planning to introduce bills that would expand the Supreme Court to 13 seats in an attempt to overturn the conservative majority at the top of the judiciary.

The Intercept and other news outlets have reported that Sen. Ed Markey (D-MA) will introduce a bill in the upper chamber to expand the Supreme Court by four seats from its total of nine.

Rep. Jerry Nadler is reportedly leading the effort to bring the same measure in front of the House on Thursday—a move that has already angered some Republicans.

When questioned by GOP Rep. Jim Jordan on Wednesday, the New York Democrat refused to confirm or deny whether his party was planning to expand the Supreme Court and fill the new seats with liberal justices.

U.S. Supreme Court Washington, D.C.
A police officer stands guard on the steps of the U.S. Supreme Court in Washington, D.C. Democrats are reportedly planning bills that would allow them to pack the court with liberal justices. Jim Watson/AFP via Getty Images

"That is not the subject of the markup," Nadler said, referring to the process of debating, amending or rewriting a bill in a congressional committee.

Rep. Jordan is not the only Republican lawmaker to raise concerns about the reports. "Packing the Supreme Court would destroy the Supreme Court," tweeted Arkansas Senator Tom Cotton. "The Democrats will do anything for power."

The White House announced earlier this month that it would set up a commission to study whether the administration should expand the court. The commission was one of President Joe Biden's campaign pledges.

There are currently six conservative justices on the Supreme Court, including three nominated by former President Donald Trump.

Can Democrats pack the Supreme Court?

Yes, legally speaking. The Constitution does not set out how many justices should sit on the Supreme Court benches at any one time, even though the figure has not changed since 1869.

Congress has the power to decide the shape and structure of the court, but its supremacy over other courts is laid out explicitly under Article III of the Constitution.

According to the Supreme Court website, the size of the court changed six times before the number of justices—led by one chief justice—settled on nine in the wake of the Civil War.

The president will have the constitutional power to appoint new justices if Congress votes to expand the size of the court. However, that could be tricky for Democrats given the make-up of the lower and upper houses.

How could Democrats pack the Supreme Court?

Democrats will need to pass bills expanding the court in both the House and Senate to open the pathway for the president to pack the benches with liberal and progressive justices, as is his right under the Constitution.

In the House, Democrats have a slim majority and cannot lose three or more votes if they wish to pass their proposals.

The Senate is split 50-50. This makes it highly unlikely that Democrats would win the 60 votes necessary to get past the filibuster, which would allow the GOP to block reforms to the court.