WASHINGTON — The death of Justice Ruth Bader Ginsburg — and the prospect of President Donald Trump rushing through a nominee to deepen the court’s conservative majority — has a growing number of Democrats rallying around adding seats to the US Supreme Court.
There is little that Senate Democrats can do to stop a Trump nominee from getting confirmed if the Senate’s Republican majority sticks together. That would give the court’s more conservative wing a 6–3 majority. Even if Joe Biden wins the White House and Democrats take the Senate, Democrats fear a solidly conservative court would stand in the way of their political agenda.
Enter court-packing, which would involve Congress passing legislation to add more seats to the nine-justice court. It’s a strategy that hasn’t had real momentum since 1937, when Franklin Roosevelt unsuccessfully pushed to add up to 15 new justices in the face of a court that repeatedly blocked his New Deal policies. Democrats calling for more seats now haven’t specified how many more justices they might want, but the fact that they’re talking about it all shows how much the politics around the court have changed just in the last two years.
One of the leading court expansion proposals, which was based on a Yale Law Journal article and had support from former Democratic presidential candidates Pete Buttigieg and Beto O’Rourke, involves going from nine justices to 15. Known as the “5-5-5” plan, it proposes five Democrat-affiliated justices, five Republican-affiliated justices, and five justices chosen by the 10 politically aligned justices to serve shorter, rotating terms.
Opponents of court-packing, including Biden, argue it would start a dangerous precedent — that whichever political party is in power would try to add or subtract seats to change the court’s ideological balance. Biden hasn’t weighed in on court-packing since Ginsburg’s death, but the Washington Post reported that some of his advisers were annoyed with Democrats taking a strong stance on the issue right away.
After Senate Majority Leader Mitch McConnell announced Friday night that the president’s nominee to replace Ginsburg would get a vote on the floor of the Senate, prominent Democrats and progressive activists began announcing their support for court-packing. Sen. Ed Markey of Massachusetts was the first to tweet in support of Democrats taking dramatic steps after the election if they win back the Senate.
“Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year,” Markey tweeted Friday night. “If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
The next morning, Rep. Joe Kennedy, who recently unsuccessfully primaried Markey, tweeted his agreement, writing, “If [McConnell] holds a vote in 2020, we pack the court in 2021. It’s that simple.”
And Rep. Jerry Nadler, chair of the House Judiciary Committee, concurred.
“If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” Nadler tweeted Saturday. “Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials. Congress would have to act and expanding the court would be the right place to start.”
During a Sunday night press conference in Brooklyn with Rep. Alexandria Ocasio-Cortez, Senate Minority Leader Chuck Schumer told reporters that “everything is on the table” in regards to court expansion if Trump’s nominee is confirmed before the election and if Democrats win a majority in the Senate.
Ocasio-Cortez has long supported court expansion and recently told reporters that Democrats should keep the option of expanding the court open. “Our reproductive rights are on the line, our labor rights are on the line, our right to healthcare is on the line, labor and union protections are on the line, our climate is on the line,” she told reporters at the Brooklyn press conference.
Federal law has set the court’s size at nine justices since 1869 — one chief justice and eight associate justices. They serve lifetime appointments and can only be removed through impeachment.
The idea of adding justices to immediately undercut the conservative majority reemerged in late 2018 after the contentious confirmation fight over Justice Brett Kavanaugh with the launch of a liberal advocacy group focused on expanding the size of the Supreme Court as well as the lower courts. Originally called “Pack the Courts,” the group was started by Aaron Belkin, who was previously involved in the fight against the military’s “don’t ask, don’t tell” policy prohibiting LGBTQ service members from serving openly.
Imposing term limits is another big structural change that’s gained traction. Last year, Fix the Court, a Supreme Court watchdog group, launched a term limits campaign with support from dozens of law professors and legal scholars; the group has proposed staggered 18-year terms for justices. Proponents of court-packing argue term limits wouldn’t be a fast-enough fix, however.
Sean McElwee, who has worked alongside Belkin in pushing Democrats to embrace court-packing, pointed to the judicial pushback against the Affordable Care Act as one of the reasons why the push has gained traction over the past few years. The ACA has been challenged by red-state attorneys general in a lawsuit that has wound through the judicial system after Congress failed to repeal the law in 2017. The Supreme Court is set to hear the case in the days after the election.
“The problem with the Supreme Court is that it’s a very effective way to fuck up any progressive legislation,” McElwee said.
“We live in a world where Democrats can just not be sure that, even if they do due diligence on passing laws, that they will see those laws held up by the Supreme Court,” McElwee added. “It became clear that we needed to have discussions about expansion because it is fundamentally undemocratic for us to win the House, win the Senate, win the presidency — all with majorities of the American public — and then see the laws we want to enact struck down by an unelected branch.”
More than 80 years after Roosevelt’s unsuccessful push, the term “court-packing” was still so fraught that Belkin faced pressure from within his own organization to tone down the rhetoric. He reluctantly agreed to change the name of the organization to “Take Back the Court”; he previously told BuzzFeed News that he was overruled by “literally everybody” — but the mission stayed the same.
The group’s first win came in February 2019, when they successfully planted a question about court-packing at a campaign event in Philadelphia for Buttigieg, then a presidential contender. Buttigieg said that he was open to the idea, which not only generated a round of public debate among legal scholars but also put pressure on other Democratic candidates to weigh in. A few months later, the New York Times included a question about adding seats to the court as part of a larger questionnaire to top-polling Democratic candidates.
A number of 2020 presidential candidates, including Sens. Kamala Harris, Amy Klobuchar, and Elizabeth Warren, told the Times at the time that they were open to at least thinking about it. Biden made clear early on that he was opposed.
“If we pack the court, it’s going to come back and eat us alive,” Biden said at an event in July 2019.
Belkin told BuzzFeed News on Monday that his group isn’t trying to directly lobby Biden to change his mind. He said its approach has been to build a grassroots movement and also send a message to Chief Justice John Roberts that there could be consequences if liberals believe he’s tipping the scales too far in favor of Trump and Republicans.
Belkin noted the speed at which the conversation shifted to court-packing after Ginsburg’s death on Friday.
“The argument has moved up and up and up through the echelons of the party and the progressive community,” he said. “Joe Biden is going to see real fast that unless something is done about the court, his agenda is dead on arrival on day one. Those are the dots that need to be connected. It’s not about lobbying Joe Biden, it’s about helping the progressive community understand.”
At the Democratic National Convention this summer, the party for the first time included a call for “structural court reforms” in its platform, although it didn’t advocate for any specific plan.
The idea has also picked up traction among progressive candidates, including Marie Newman, who recently pulled off a successful primary challenge against Illinois Rep. Dan Lipinski, and Mondaire Jones, who recently won the primary to replace Rep. Nita Lowey in New York and made the issue central to his campaign platform.
In an interview with BuzzFeed News on Monday, Jones said he thought 13 justices “sounds right.”
“Given the hyperpartisan behavior of what may end up being six justices in the conservative majority on the Supreme Court, I think the way that you restore balance and save our democracy is to have seven people in good conscience,” Jones said.
McElwee pointed out that while the idea has gained traction with a wider coalition of Democrats from Schumer to more progressive-leaning candidates like Jones, it is going to take an extended amount of time to bring a majority of Democrats on board with expanding the court.
Congress would have to pass legislation through the House and Senate to expand the number of Supreme Court justices and either get the president’s signature or override a veto. With Democrats expected to maintain a fairly safe majority in the House, the focus would turn to the Senate.
“We’ve definitely made some strides but whenever Democrats try to expand the court it’s going to take 50 Democratic senators,” McElwee said, assuming Biden wins and Kamala Harris as vice president could break the tie.
McElwee said that the best way to shape public opinion on court-packing is to emphasize the ways the Supreme Court affects people’s day-to-day lives, from decisions that determine their access to healthcare to how they vote for congressional representatives. “I think you get to 50 votes on this idea by 2022 or 2023,” McElwee said. “We have to make it clear to the American public the material harm that the court is doing and then make it clear to the Democratic senators that the majority is on our side."
Correction: McElwee said advocates of court-packing need to show Democratic senators that they have popular support. A previous version of this story misstated his quote.