Democrats should get on board with Supreme Court expansion – fast

Letting the president fire the leaders of once-independent agencies. Allowing the administration to scrap protections for refugees. And coming dangerously close to rewriting the Constitution to end birthright citizenship.

The only thing that could make the latest spate of Supreme Court decisions worse was the apparently erroneous publication of an NPR piece claiming that Justice Samuel Alito was resigning from the Court. The story was ultimately retracted and all requisite apologies given, but the piece was a chilling reminder that there is still plenty of time for President Donald Trump and his Republican-controlled Senate to seat a young — and assuredly hardline — rightwing justice in the event that Alito, 76, or either of Chief Justice John Roberts, 71, or Justice Clarence Thomas, 77, decide to retire while a conservative replacement is guaranteed. 

In other words: If the current 6-3 Court isn’t bad enough, we may be saddled with an even more entrenched conservative court in short order.

That means even if Democrats accomplish the already Herculean feat of winning the House, Senate and White House in 2028, and then accomplish the even-more-Herculean feat of passing progressive legislation, the Court will inevitably serve as a permanent veto to strike it all down. 

So we have to decide if we want symbolic victories or if we actually want to make permanent, meaningful change. If it’s the latter, then we need to reform and expand the Court. 

I understand the counterargument: Won’t the Republicans retaliate? Won’t that set off a chain reaction where they add justices, and we add justices, and eventually the Supreme Court is more populous than the Senate? My response to that is that we cannot fail to act for fear of Republicans potentially abusing these processes; they’re already abusing them! They’re already ignoring the plain text of the Constitution, already violating the emoluments clause, already engaging in political retribution, already wielding the FCC against dissenting voices, already undermining the infrastructure of our elections. If the worry is that Republicans might further undermine democracy, I hate to be the bearer of bad news, but we’re already there.

In my new book, The Day After, I argue for Supreme Court expansion among a raft of other reforms. It’s a blueprint for how Democrats can and must wield power in a way that doesn’t seek to simply entrench the status quo, but seeks to rebuild our government with a particular focus on outcomes. If there’s one lesson that we can learn from Trump, it’s that our institutions are not as sacrosanct as we once believed. But unlike Trump, we can overcome those barriers for virtuous reasons. As opposed to self-enrichment and the consolidation of power, we can deliver universal healthcare, we can combat climate change, we can expand voting rights. 

I’m also proud to announce that I am partnering with Marc Elias’ 501(c)3, the Free Election Fund, which supports pro-democracy, voting rights and election litigation. I am donating proceeds from every single book sold during this pre-order period to the Free Election Fund. My editor and publisher have kindly agreed to match those funds. So if you’d like to support my work and the critical election litigation that Marc’s team does, please pre-order a copy of The Day After here.

Brian Tyler Cohen is a progressive independent creator. He has over 13 million subscribers across all social media platforms, including a YouTube channel with five billion views and counting. His show, No Lie with Brian Tyler Cohen, is a destination for the top names in politics. His first book, Shameless, was a #1 New York Times bestseller, and his second book, The Day After, will be released on July 14, 2026.