Should the Supreme Court be expanded? Calls to pack the court grow after recent SCOTUS rulings

Democrats say reform is overdue for the nine-member court, which has a 6-3 conservative majority.

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A photo illustration shows the front of the Supreme Court with six red pillars and three blue ones. Off to the side are four more blue pillars.
Photo illustration: Yahoo News Visuals; photos: Getty Images

What’s happening

The U.S. Supreme Court’s term came to an end last month as the conservative majority released a slew of opinions that sparked widespread controversy and renewed the debate around court packing, which would ultimately expand the court beyond its nine justices.

“The current court [led by Chief Justice John Roberts] is so extremely conservative that it is likely to spark discussions of court packing every June, when the court typically releases its most important decisions of the term,” Stephen Feldman, law professor and adjunct professor of political science at the University of Wyoming and author of “Pack the Court! A Defense of Supreme Court Expansion,” told Yahoo News.

Affirmative action, LGBTQ rights and student loans were three areas that led to debate this year. In a 6-3 vote, the court struck down President Biden’s student loan relief plan and ruled that federal law does not authorize the Department of Education to cancel student loan debt.

In addition, SCOTUS decided that a website designer does not have to make wedding websites for same-sex couples. The court also upended a decades-long precedent when it decided that colleges and universities should not consider race in the college admissions process.

But Matt Steffey, professor of law at Mississippi College, said it was the decision last year in Dobbs v. Jackson Women’s Health Organization, where the court overturned the landmark Roe v. Wade decision and denied women the constitutional right to abortion, that gave the idea of court packing momentum.

“[But] the decisions invalidating affirmative action and student loan relief, among others, have helped keep the idea alive,” Steffey told Yahoo News. “That said, the issue is moot as long as we have a divided government in Washington.”

Currently the court includes nine justices, but “the Constitution does not set a specific number of seats for the Supreme Court,” Feldman said.

The push to reform the court isn’t new. Biden issued an executive order to establish a commission to study the status of and make recommendations for improving the court in 2021. The commission’s report advised against court packing.

“President Biden effectively killed the near-term prospects for court expansion when he constructed his Supreme Court commission in a way that was guaranteed not to challenge the status quo,” David Noll, law professor at Rutgers Law School, told Yahoo News. “That leaves other potential reforms, such as term limits, as the most likely way forward.”

Why there’s debate

Many Democrats believe the makeup of the Supreme Court is unjust. “Republicans have manipulated the current system so that conservatives are far overrepresented in our system,” Feldman said.

But actually expanding the court would require cooperation from both sides of the aisle. “Democrats will not be able to expand the court unless they control the presidency, the Senate and the House,” Feldman said. Democrats control the Senate, while Republicans dominate the House.

“Republicans would block a court-packing plan if they controlled any of those institutions,” he said. “If Democrats were to gain control of all those institutions in the 2024 elections, then they would need to add four seats to the court in order to create a 7-6 progressive majority.”

Experts say Republicans won’t agree to expanding the court because it will favor Democratic policies and goals. “[It] would affect the outcome in every important and controversial constitutional law case and many other cases as well: affirmative action, abortion, campaign finance reform, gun control, climate change, the death penalty,” Michael Klarman, professor of legal history at Harvard Law School, told Yahoo News.

What’s next

Despite Democrats’ push to pack the court, the president has not agreed to do so. “If we start the process of trying to expand the court, we’re going to politicize it, maybe forever, in a way that is not healthy,” Biden said in an interview with MSNBC following the court’s decision on race-based admissions last month.

But Robert Reich, secretary of labor under President Bill Clinton, said in a tweet that the Supreme Court is “off the rails” and that court reform is necessary. “One thing is for certain: we can’t allow the extremists and Big Money interests who have hijacked the Court to go unchecked,” Reich tweeted.

Demand Justice, an organization fighting to pack the court, says the Supreme Court is in a crisis and there are four steps to reform it: Restore balance by adding four additional seats, create term limits, create a code of ethics and increase diversity.

But experts say court packing is unlikely in the current political climate. “Given the profound impotence of Congress, I don’t think court packing will happen soon,” Steffey said. “But if Democrats ever win both the White House and sizable majorities in Congress, then I think there is a serious chance that court packing or other pushback will be on the agenda.”


Pack the court to restore its balance

“Packing the court would shift the court’s politics to harmonize more closely with the majority of Americans. The court’s constitutional decisions are always partly political. That is, the court is a political institution. Right now, the court’s politics are far out of line with the majority of Americans. This court interprets the Constitution in a way that is highly antithetical to democracy.” — Stephen Feldman, law professor and adjunct professor of political science at the University of Wyoming, to Yahoo News

The legitimacy of the court is a ‘fake crisis’

“Of course, the court is coming down differently on a range of issues than it did in past decades. If faithfulness to the original meaning of the Constitution and statue is your lodestar, that’s not a bug — or a crisis — but a feature.” — Rich Lowry, editor in chief of National Review, Politico

The real problem is our broken political system

“This is a problem of partisan politics. It is the Republican party attacking democracy, and the Supreme Court is helping it. Because it is a partisan phenomenon, there is no nonpartisan good-government fix for it. If term limits had been in place earlier, we might not have come to this point, because the Supreme Court would not have facilitated the minoritarian takeover.” — Kermit Roosevelt, professor of constitutional law at the University of Pennsylvania Carey School of Law, Time

Why expand the court now?

“Turning to the structure of the Supreme Court, there is nothing magical about the number nine. The number of seats on the court has fluctuated — starting with six and climbing to 10 around the Civil War. It settled at nine members in the late 1860s and then solidified — despite President Franklin Roosevelt’s spectacular political failure at court packing in the 1930s. But whether we have nine or 19 justices, the reason for any change is as important as the change itself. Court expansion advocates have a heavy burden to explain and justify why they want to add seats and why it should be done now.” — Elizabeth Slattery, senior legal fellow and deputy director of Pacific Legal Foundation’s Center for the Separation of Powers, CNN

There are no good solutions

“Fundamentally, no reform proposal can ‘solve the problem’ of the court’s legitimacy. All we can do is create institutions that incentivize self-restraint, reciprocity and ambition colliding with ambition consistent with our long-running Madisonian ideals.” — Scott S. Boddery, assistant professor of political science at Gettysburg College and Benjamin R. Pontz, student at Harvard Law School, Politico

Packing the court is dangerous

“A packed Supreme Court most likely would permanently politicize the Supreme Court, removing the separation of powers. The court would simply be an adjunct under the president’s and Congress’ political party in charge. Its legitimacy would wither, eroding public confidence in its rulings. And the rulings themselves would surely deserve it.” — Kelly Shackelford, president and CEO of First Liberty Institute, The Hill

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