There’s nothing in the U.S. Constitution that says the Supreme Court must have nine justices — that’s just the way it’s been for more than 150 years. But recently, some Democrats have proposed adding justices to the court. Here, senior writer and legal reporter Amelia Thomson-DeVeaux asks legal experts and historians to weigh in: Should Congress expand the Supreme Court? See below for a transcript of the video.
By this summer, abortion rights could be overturned, gun rights could be expanded and the wall separating church and state could have another big hole in it.
The Supreme Court will soon be announcing decisions on all of these issues. And today’s court is very conservative. While he was president, Donald Trump was able to appoint three new justices, and those justices serve for life. So, the court will probably be controlled by a highly conservative majority for decades.
None of this is good news for the Democrats. And there’s not much they can do about it. Congress, the president and the American people don’t have a lot of ways to rein in the Supreme Court. But Democrats do have one crazy, pull-the-fire-alarm solution: They could add more justices to the Court.
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REP. MONDAIRE JONES: When the Supreme Court will not respect the will of the people, Congress has the power and the duty to expand the Supreme Court.
SEN. ED MARKEY: Expanding the court is constitutional. Congress has done it before, and Congress must do it again.
SEN. MAZIE HIRONO: We should be talking about court reform so that we have a court that is going to make decisions based on objective facts as opposed to some kind of ideological agenda.
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I’m Amelia Thomson-DeVeaux, a legal reporter at FiveThirtyEight, and in this series, I’m exploring how the Supreme Court is influenced by politics. Today I’m asking: Should Congress pack the Supreme Court?
For the past 150 years, the Supreme Court has had nine justices. But that number isn’t based on anything specific.
JOSHUA BRAVER: The Constitution is silent about the Supreme Court size, and it’s up to Congress to set it. And that size has waxed and waned depending on a variety of factors. It started out at six, it’s been as high as 10.
Several presidents added or subtracted justices from the Supreme Court during the 1800s.
But, apparently, nine was the magic number. The size of the court hasn’t changed since 1869. But that’s not for lack of trying. In the 1930s, when President Franklin Delano Roosevelt was pushing massive government interventions to end the Great Depression, the Supreme Court, which was really conservative at the time, kept striking them down.
JOSHUA BRAVER: At a certain point, FDR feels rightly or wrongly that he’s not going to be able to have a successful New Deal unless he has justices who are willing to uphold his legislation. And he’s flush, and he’s confident. He’s come over a major electoral victory. And so he feels like he really has the wind and the energy and the mandate to crush the Supreme Court.
Turns out he didn’t. His court-packing plan was really unpopular. And even though he ultimately did get what he wanted, because the justices stopped overturning his legislation, his plan to pack the court was perceived as such a massive failure that nobody talked seriously about expanding the court again. That is, until a few years ago.
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BARACK OBAMA: Of the many powers and responsibilities that the Constitution vests in the presidency, few are more consequential than appointing a Supreme Court justice.
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In 2016, President Barack Obama nominated Merrick Garland to the Supreme Court. But the Republican Senate majority refused to hold hearings for him until after the general election, which was still eight whole months away. Trump won, which meant he got to fill the seat. Now some people on the left say it was stolen. And if Republicans are going to play dirty, why should Democrats follow the old rulebook?.
NANCY GERTNER: This is a moment that is really unlike any other, and I think the Democrats have to take advantage of it.
Nancy Gertner is a former federal judge who served on a commission created by President Joe Biden to study Supreme Court reform. She thinks that because the court is so conservative and the process of confirming justices has become so political, they should add at least two more justices to the court.
NANCY GERTNER: This court has no humility. They are unabashed in their desire to remake American law in numbers of areas. Expansion would certainly mean, you know, the same kind of political battles over Supreme Court nominees that we’ve seen before but at least offers the possibility of a court that would be more balanced than this court would be.
But not everyone thinks that tinkering with the size of the court is a good idea. It could set a precedent that Democrats later regret.
Here’s Maya Sen, a political scientist at Harvard.
MAYA SEN: We did a series of simulations to try to figure out, like, how flip-flopping control of the White House and of Congress would affect these things and the composition of the court over time. I think in our simulations the median size of the Supreme Court after 100 years would be something like 50 members.
THOMAS B. GRIFFITH: It’s a horribly bad idea. It gives up on the ideal that judges are supposed to be impartial, that they’re not partisans. It’s saying, Oh, yes, they are. And so we’re going to put our partisan judges on to counteract the work of your partisan judges.
Thomas Griffith is a former federal judge on the U.S. Court of Appeals for the District of Columbia. He also served on Biden’s Supreme Court commission.
THOMAS B. GRIFFITH: Each of the justices on the Supreme Court was appointed to the Supreme Court through the lawful and constitutional means. If people don’t like their views, what do you do? Well, you vote for a different president, then you vote for a different Senate. I don’t think you burn down the house just because you’re upset at particular outcomes.
A Marquette Law School poll found that 51 percent of Americans oppose adding more justices to the Supreme Court, while 48 percent are in favor. So, we’re pretty divided on this issue. And, predictably, people are split along partisan lines. But the real problem for court expansion is that not enough Democratic politicians are onboard.
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ERIN BURNETT: Vice President Biden, if Roe v. Wade is overturned on your watch and you can’t pass legislation in Congress, would you seek to add justices to the Supreme Court to protect women’s reproductive rights?
JOE BIDEN: I would not get into court-packing.
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That means that, for now, a highly conservative majority basically has a free pass to do whatever they want, even if it’s really unpopular. Because at the end of the day, there aren’t a whole lot of ways to limit the court’s power. And if they don’t want to add more justices, Democrats just have to live with whatever this court wants to do.
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Right about now, you might be screaming, “What about term limits?!” And, yes, imposing a, say, 18-year term limit on Supreme Court justices would be way more popular and a lot less disruptive than adding more people to the court. The problem is that it’s much less clear whether the Constitution gives Congress the power to do that. So, the Supreme Court would probably end up deciding whether term limits are OK — and I’m guessing they wouldn’t want to stop having jobs for life.
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