Supreme Court Expansion Is the Supreme Court Fix That Actually Matters

After the 2008 financial crisis, Congress mandated that certain banks undergo regular “stress tests” to ensure that they would be well-situated to survive the next recession. During a stress test, federal regulators imagine several worst-case scenarios—employment hits 10 ten percent, inflation skyrockets, and so on—and then use fancy math and supercomputers to determine how the tested bank would fare. Federal law requires banks that fail their tests to make big changes, increasing their capital at the expense of shareholders.  

The logic of a stress test is simple: In extreme scenarios, the weakest pieces of the stressed system are liable to break. By figuring out what those weak links are in advance, and buttressing them, the system can survive even financial ruin. 

The United States is not currently in a financial crisis, but rather, a constitutional one. Rampant corruption, evaporating rights, and direct attacks on democracy are regular headlines. And under the weight of that crisis, the cracks are showing in all our governing institutions. Even when corruption comes to light, it seems, nobody powerful is held to account; even when the vast majority of Americans want to see a policy enacted or a court decision overturned, it simply does not get done. 

In one sense, that’s helpful; the legal system’s obvious flaws make for low-hanging fruit when designing reforms. But the persistence of these flaws should be concerning to anyone who cares about American government, because this is not a stress test. If representative democracy is to survive in any recognizable form in this country, Congress needs to deal with the crisis itself. 

That crisis is, of course, the Supreme Court. In particular, it is the six Republican Supreme Court justices who have taken it upon themselves to abuse their positions of authority to remake the country as they see fit. Pick any major issue of the last half-century, and you will find that the Republicans on the Court either are already completely reinventing it or plan to do so soon: abortion rights, gun control, prayer in school, environmental regulations, the New Deal, and on and on. The American public has noticed, and is not happy about it: Polling shows that most people do not believe the Court is impartial. The Court’s approval rating is at a historic low; trust in the Court is at its lowest point in five decades..

Congress and the president have plenty of options for addressing this crisis. Several of them are described in the 300-page report commissioned by President Joe Biden and published in December 2021. And without a doubt, many of them would improve the function of the Court and our government. Regularizing appointments so that each president gets one or two, for example, would slowly bring the partisan makeup of the Court into alignment with the broader values of the American public. (It would accomplish this goal even more effectively if, one way or another, this country stuffed the Electoral College in the dustbin of history where it belongs). 

Other reforms are, broadly speaking, worthwhile. Mandatory ethics rules would make it more difficult for moneyed interests to buy influence, and force Clarence Thomas to book his vacations on Kayak like a normal person. Limiting the Court’s jurisdiction—the cases the justices are allowed to hear—could constrain their ability to inflict further damage on democracy. Certainly, reforming the “shadow docket” and eliminating the ability of the six Republican Justices to upset the legal status quo in a terse, unsigned opinion—or with no opinion at all!—would be good, and could make it harder for them to flip on their putative principles later on. And these are just reforms focused on the Court; an entire article could be dedicated to the reforms needed in Congress and to the political parties that comprise it. 

But none of those reforms would actually bring about an end to the current crisis, because none of them attack head-on the cause of all these issues: the six Republican justices. The only way to end the crisis is to disempower them. Impeachment—the constitutional mechanism for removing justices from office—is essentially impossible in modern politics, given partisan polarization, party discipline, and the implicit understanding that the Republican justices are on the same team as the Republicans in Congress. That means expanding the Court and adding enough justices to outnumber the reactionaries. Robbed of their supermajority, they will be left to write angry dissents, doomscroll Twitter from their secret accounts, and collect graft from their billionaire patrons. 

There is much to recommend this reform: Court expansion is simple, unquestionably constitutional, and would ruin Mitch McConnell’s life work. It would prevent hundreds of millions of people from having to spend the next 40 years worrying about what new and depraved ways the Court will attack their rights and way of life. That is not hyperbole, but rather the conclusion of recent political science research: A new study estimates that unless Democrats expand the Supreme Court, they will not have a majority on it until 2065.  

The cost of inaction could not be more severe; the Court’s attack on free and fair elections is two decades old now and only accelerating. The Republican Party is already building the next Jim Crow era, and in some parts of the country, that project is well under way. There is no hiding from this problem, no wishing it away, and no leaving it to the next generation. Democrats have a choice: They can either support Supreme Court expansion, or cede governance of the country to Republicans on the Court indefinitely.