Without control of the White House, there is of course only so much Democrats can do with their newfound power. And in the context of the myriad horrors of the first half of President Donald Trump’s second term, talking about what the party “should” do next is roughly analogous to deciding which out-of-control forest fire to fight first: There is not enough water, there are lots of worthy candidates, and all of them are getting worse.
One thing must be true, though: Whatever issues Democratic lawmakers choose to focus on—and, as the 2028 ideas primary gets underway, whatever ambitious ideas Democratic presidential hopefuls choose to support—the party must also have a plan for taking on the Supreme Court, which remains an existential threat to anything Democrats might hope to accomplish. Even if the party is fortunate enough to win a trifecta—the House, the Senate, and the White House—in 2028, things like a Green New Deal and Medicare for All and a new Voting Rights Act do not stand a chance before this six-justice conservative supermajority. Regrettably, what I wrote in 2020 is just as true today: If Congress passes any one of these proposals into law, the only real question is which justice ends up writing the opinion that kills it.
You might as well just have a rule that says each new President can appoint a fresh set of judges, because that would be the practical effect of such a change. I suppose that to many people, the idea of a Republican court during Republican presidential administrations and a Democratic court during Democratic presidential administrations is more appealing than the current court, but I’m not at the point yet where I would favor undermining the independence of the judicial branch even if that would lead to better short-term outcomes.
Durable and resilient change means connecting the court expansion to something meaningful. In this case, it would involve looking back on history and returning to the concept that the SC has seats equivalent to the number of federal circuits.
It could be argued there is almost a precedent for this from the Judiciary Act of 1869, the last time the court size changed, and that’s held up after all this time.
Why would court expansion mean revolving justices?
Make every citizen a judge. Boom.
They’re advocating a slippery slope argument. If you add three, then I’ll add three, and then the next person after that will add three.
I don’t see that being realistic and I would hope any such expansion would have a phased-in approach to make it more palatable and fair, and less likely to be stopped or altered.
Not literally revolving justices, but rather adding enough new justices each time to establish a majority.
So like a constant stream of court expansion bills?
Yes - if the Democrats do it, I don’t think that the next time Republicans are in power they’ll just accept the Democrats’ Supreme Court.
Cool. I can’t wait until I’m a Supreme Court Justice.
That never happened before when the court was expanded. We always ended up waiting until long after it became necessary for the next expansion.
The court hasn’t been expanded since the Civil War so I’m not sure what pattern you have in mind when you say:
My point exactly.