Supreme Court

How Democrats Could Seek to Rebalance the U.S. Supreme Court

The United States Supreme Court stands as a pillar of the American judicial system, its decisions shaping the lives of millions. Currently, the Court’s ideological landscape is distinctly conservative, with a 6-3 majority of justices appointed by Republican presidents. This significant lean has profound implications for a wide range of issues, from reproductive rights to environmental regulations, prompting progressives to consider how this imbalance might be addressed should Democrats gain unified control of the White House and Congress.

The Supreme Court: A Historically Flexible Institution

Unlike many fixed constitutional elements, the size of the Supreme Court is not set in stone by the Constitution itself. Instead, its composition is determined by Congress. Originally established with six justices, the number has fluctuated significantly throughout history. It briefly rose to ten during the Civil War, then shrank to seven after Abraham Lincoln’s assassination, before settling on nine in 1869, where it has remained for over 150 years. This historical precedent underscores that the current number of justices is a matter of statute, not constitutional mandate, meaning it can be changed by a simple act of Congress.

The Current Conservative Majority

Today’s Court features six conservative justices: Clarence Thomas (75), Samuel Alito (73), Chief Justice John Roberts (69), Neil Gorsuch (56), Brett Kavanaugh (58), and Amy Coney Barrett (52). The three liberal justices are Sonia Sotomayor (69), Elena Kagan (63), and Ketanji Brown Jackson (53). This 6-3 conservative majority is widely considered the most conservative in modern U.S. history.

Its impact has been felt keenly in recent terms, most notably with the overturning of Roe v. Wade, which eliminated the constitutional right to abortion, and decisions that have limited the Environmental Protection Agency’s ability to regulate climate change. While public perception of the Court’s ideology may sometimes lag, the actual shift has been undeniable, leading to rulings that align strongly with conservative viewpoints.

Strategies for a Liberal Shift: What Could Democrats Do?

For progressives seeking to “fix this imbalance,” the path forward requires significant political will and legislative action. When Democrats control both the White House and Congress, several potential strategies emerge, though each is fraught with legal and political hurdles.

1. Court Expansion (“Court Packing”)

The most direct and frequently discussed method to shift the Court’s ideology is to expand the number of justices. This concept, often pejoratively termed “court packing,” involves passing legislation to add new seats to the Supreme Court. The intention would be to allow a Democratic president to appoint new, liberal-leaning justices, thereby altering the 6-3 conservative majority.

• The Process: To change the Supreme Court to, for example, 13 justices, both the House and Senate would need to pass a bill authorizing the expansion. The President would then sign it into law. This process is legally straightforward, requiring only a simple majority vote in both chambers and the President’s signature.
• Historical Precedent (FDR’s Attempt): This strategy is not without precedent, albeit a controversial one. In 1937, President Franklin D. Roosevelt attempted to expand the Court, proposing a bill that would allow him to appoint an additional justice for each existing justice over the age of 70 (up to a maximum of 15 justices). Roosevelt’s aim was to overcome the Court’s resistance to his New Deal programs. However, his plan faced intense opposition from Congress and the public, who viewed it as an assault on the Court’s independence and the balance of power. The proposal ultimately failed, but it remains a seminal moment in debates about judicial independence.
• Modern Feasibility: While the legal path for expanding the Court to 13 justices (or any other number) is clear, the political hurdles are immense. Such a move would undoubtedly be met with fierce opposition from Republicans, raise concerns about the politicization of the judiciary, and could spark a long-term cycle of tit-for-tat court expansions whenever power shifts between parties.

2. Legislative Changes to Judicial Appointments

Beyond simply adding seats, Democrats could explore passing legislation designed to influence future judicial appointments. This might involve:

• Setting New Criteria: While the President nominates and the Senate confirms, Congress could theoretically pass laws that set broader guidelines or criteria for judicial appointments, aiming to favor candidates who align with progressive legal philosophies. However, the constitutional power for appointment largely rests with the Executive and Senate, making direct legislative control challenging.
• Expediting Confirmation Processes: Legislation could aim to streamline or accelerate the judicial confirmation process, making it easier to confirm ideologically aligned judges once vacancies arise.

3. Limiting the Court’s Power or Jurisdiction

Another, more constitutionally contentious, approach involves legislation that aims to limit the Supreme Court’s power or jurisdiction. This could include:

• Jurisdiction Stripping: Congress has the constitutional power to define the jurisdiction of federal courts, including the Supreme Court. In theory, Congress could pass laws that strip the Supreme Court of its appellate jurisdiction over certain types of cases (e.g., abortion, gun rights). This would prevent the Court from hearing appeals on those specific issues. However, such moves are highly controversial, could be challenged as unconstitutional infringements on judicial power, and would spark significant constitutional debate.
• Altering Court Procedures: Less dramatically, Congress might pass laws that alter certain court procedures, though the Court itself largely governs its internal rules.

4. Proactive Legislation to Address Policy Issues

Rather than directly altering the Court, Democrats could also focus on passing robust federal legislation that addresses issues previously impacted by conservative Court rulings. For instance, following the overturning of Roe v. Wade, Congress could pass laws aimed at codifying abortion rights federally. While such laws might still face legal challenges eventually reaching the Supreme Court, a future Court with a more liberal composition might uphold them, or the very act of passing them could signal public will and pressure the Court.

Challenges and Considerations

Each of these strategies, particularly court expansion, is fraught with significant legal and political challenges. Any attempt to fundamentally alter the Court’s structure or power would ignite intense partisan gridlock, raise concerns about the independence of the judiciary, and undoubtedly face fierce public and legal scrutiny. The goal for progressives is clear: to rebalance the Court’s ideological lean. However, the means to achieve this are complex, politically perilous, and require navigating a delicate balance between legislative power and the institutional integrity of the judiciary.