To Save Democracy, We Must Expand the Court
Over the past decade, the conservative majority on the U.S. Supreme Court has perpetrated a multifaceted attack on American democracy. The Court’s anti-democracy cases are too many to name, but in brief they have: greenlit voter suppression by striking down key aspects of the Voting Rights Act, opened the floodgates for unlimited spending in elections by shredding our campaign finance system and encouraged the use of partisan gerrymandering by tying the hands of federal courts to stop even clearly unconstitutional district drawing. Led by long-time voting rights antagonist Chief Justice John Roberts, the Court’s conservative bloc has played a key role in ushering in the anti-democracy movement that has taken over today’s Republican Party.
Now, with an increasingly emboldened 6-3 conservative supermajority, the Court appears to be exploring ways to make the situation even worse, most immediately with a case about the independent state legislature theory, which could give Republicans yet more tools to subvert democracy.
The hyperconservative Court’s attacks on democracy do not end when elections are over. Even when Democrats manage to win power under the Supreme Court’s rules, they increasingly find their ability to actually govern limited by the same conservative Court. In rulings on issues ranging from gun violence prevention to environmental regulations, the Republicans on the Court have adopted radical doctrines to strike down policies with which they disagree. So even when Americans show up in huge numbers to elect Democrats in spite of the tilted playing field the Supreme Court has created, the Supreme Court yet again stops their votes from actually translating into popular policy ideas.
Of course, the current makeup of the Court itself is also a product of the anti-democratic aspects of our system. Five of the six conservative justices were appointed by Republican presidents who first took office despite losing the popular vote, and two of these five justices were appointed by former President George W. Bush, who first took office only after a conservative Supreme Court majority installed him in the presidency. Former President Donald Trump’s nominees were confirmed by senators who represented a minority of Americans. And Republicans successfully used their majority in the U.S. Senate to prevent former President Barack Obama, the duly elected president at the time, from filling a Supreme Court vacancy in his term.
Without change, we risk entering a cycle in which the conservative Supreme Court makes it even easier for Republicans to maintain power with smaller and smaller levels of support, while Republicans in turn use that power to protect their Supreme Court majority.
[Court] expansion isn’t just the best way to protect our republic from the anti-democracy zealots on the Supreme Court. It’s the only way to do it.
But there is a way out: expanding the Supreme Court to bring balance to it. The U.S. Constitution leaves it to Congress to decide how many justices sit on the Supreme Court, and it is time for the people’s elected representatives to change that number again, as they have done more than a half-dozen times throughout history. By allowing Biden to nominate four more justices, we could counteract the Republican hijacking of the Court and create a majority that will respect democracy and the rule of law. At Demand Justice — where I’m proud to serve as co-founder and chief counsel — we believe this is the most straight-forward, clearly constitutional way to immediately restore balance to an out of control institution.
Expanding the Court would also serve to modernize and diversify it. Expansion would allow the president to increase racial and gender diversity on the Court, and to appoint justices with different types of professional experiences. It would let the justices hear more cases each term and return the Court to the historical standard of having one justice oversee each circuit.
This idea has growing support in Congress and across the progressive movement. When Biden was inaugurated in January 2021, no one had ever introduced a bill to expand the Court. Today, the Judiciary Act of 2021 has more than 60 co-sponsors, including four of the top Democrats on the House Judiciary Committee and Sens. Ed Markey (D-Mass.), Tina Smith (D-Minn.) and Elizabeth Warren (D-Mass.). The bill has been endorsed by a growing list of top progressive advocacy organizations including MoveOn, SEIU, League of Conservation Voters, March For Our Lives and the major LGBTQ+ litigating organizations. Leading legal thinkers, including several who served on Biden’s Supreme Court reform commission, also support it. Polls taken after the Supreme Court overturned Roe show more Americans support expansion than oppose it, including nearly three out of every four Democratic voters.
Despite this momentum, some worry that the idea of Supreme Court expansion does not have enough support among elected officials and are wary of taking it seriously. This is the wrong approach for two reasons. First, when our democracy is under attack, we need to ask what ideas actually solve the problem, and then figure out how to get it done. Second, if you want evidence that an idea can go from being clearly right but not widely adopted within the Democratic establishment to a nearly consensus view, consider the filibuster. During the 2020 presidential campaign, many Democrats did not commit to abolishing the filibuster, but this year, 48 of 50 members of the Democratic caucus in the Senate voted to break the filibuster for democracy reform, and leading 2022 Democratic Senate candidates have promised to do the same. This shows that when confronted with the harsh reality that our democracy is under attack, and when pushed by activists and voters, Democrats can evolve quickly — and this Supreme Court is offering plenty of harsh realities, with more surely to come.
Some institutionalists worry about engendering a tit for tat spiral wherein Republicans respond to expansion by in turn changing the size of the Supreme Court when they take office, but this concern with respect to escalation has it exactly backwards. Right now, we are living through the worst case scenario, in which Republicans have thoroughly undermined the legitimacy of the Court by stealing control through repeatedly broken norms. Democrats who have accepted the status quo — despite the Republican-controlled Senate stalling Obama’s nomination of now-U.S. Attorney General Merrick Garland to the Supreme Court yet pushing through the speedy confirmation of Justice Amy Coney Barrett — have sent Republicans the message that one-sided escalation can continue indefinitely because there are no consequences for doing so. Meanwhile, the anti-democratic rulings of the Court let Republican candidates win elections while getting even more outside the mainstream. As former Stanford Law Dean Larry Kramer wrote about expansion: “This is a lesson we learned decades ago from economists and game theorists: Once cooperation breaks down, the only play to restore it is tit-for-tat. It’s the only way both sides can learn that neither side wins unless they cooperate.” Republicans already broke the Supreme Court. We can’t fix it by ignoring that fact, only by acting.
Finally, some people understand that the Supreme Court must be reformed, but prefer enacting term limits over expanding the Court. These reforms are not mutually exclusive; Demand Justice supports term limits and other measures, but also believes expansion must come first. Although we agree with the scholars who argue that term limits can be enacted by law rather than constitutional amendment, term limits would almost certainly be challenged as unconstitutional, and we simply cannot trust that the current conservative supermajority would not strike them down to protect its own power. Furthermore, the crisis facing our democracy and our rights is just too urgent to wait years for term limits to slowly change the composition of the Court; we need a reform that will restore balance now, and that’s expansion.
Ultimately, expansion isn’t just the best way to protect our republic from the anti-democracy zealots on the Supreme Court. It’s the only way to do it. To get it done, we’ll need the support of everyone invested in protecting our democracy to support passage of the Judiciary Act without delay.
Christopher Kang is the cofounder and chief counsel of Demand Justice. He served in the White House for nearly seven years, as deputy counsel to President Barack Obama and special assistant to the president for legislative affairs.