On April 8th, Ketanji Brown Jackson was confirmed by the Senate to the Supreme Court. Jackson will become the first black woman to be a member of the Supreme Court. Jackson’s confirmation marks the first time in American history that white men will not make up the majority of Justices on the Supreme Court. While Biden was able to get Jackson confirmed, Jackson’s confirmation merely maintains the political balance of power on the Supreme Court instead of shifting it towards the left.
In recent years, the Supreme Court has undergone a significant transformation towards a conservative majority. In the spring of 2016, Republican lawmakers refused to hold a confirmation hearing for Obama nominee Merrick Garland under the basis that a president about to leave office should not be able to nominate a Supreme Court Justice, an action that had not been taken since the Civil War. Following the election of President Trump, Republican lawmakers were able to confirm conservative Justices Neil Gorsuch and Brett Kavanaugh. Finally, only a week before Election Day, Trump confirmed Amy Coney Barrett (under the contradictory premise that a president about to leave office should be able nominate a Supreme Court Justice) to fill the seat vacated by the passing of Ruth Bader Ginsburg. With these three nominations, the Republicans gained a 6-3 majority on the Supreme Court, and given that all three of his nominees were relatively young, many have concluded that Trump’s nominees will shape the Supreme Court for decades to come.
The Supreme Court’s current makeup has led to increased discourse on the left about expanding the Court’s size. The most common proposal would expand the size of the court from 9 to 13 justices. The notion of expanding the Supreme Court is not entirely unprecedented. Franklin Delano Roosevelt attempted to expand the Supreme Court due to the Court’s opposition to his New Deal policies, but abandoned the plan when he gained the necessary support. However, the Supreme Court has not increased in size since Andrew Jackson moved the court to nine members in 1837.
An expansion to the Supreme Court could restore a political balance on the Court, presenting some significant benefits. The Republican majority is poised to roll back abortion protections and could help uphold efforts to curtail voting rights, changes that would violate the basic rights of people across the country. A balanced Court would protect these and many other rights currently being targeted by the Republican majority. Additionally, expanding the size of the Supreme Court would signal that the Court is more representative of the country as a whole. Polling data has found that Democratic support among the general public is significantly higher than Republican support. Even if this polling data is not entirely accurate, Republican support in the US is nowhere near two-thirds of the country like the makeup of the court would indicate. Despite this, a Republican president was the President despite losing the popular vote and shifted the balance on the Supreme Court for decades. Decisively returning the Supreme Court to a point where it represents the views of the people would represent a positive trend for American democracy at a time where our democracy is being challenged.
Despite these benefits, the harms of expanding the Supreme Court are too great to ignore. The most serious concern is that packing the Court would set a dangerous precedent. Given that Democrats would likely expand the court simply by passing a law, there would be absolutely nothing stopping conservatives from doing exactly the same thing once they earn their own legislative majority and have a president in office. This has a number of dangerous consequences. First of all, it would dilute the power of the Supreme Court so significantly that the institution would be effectively meaningless. Its status as the “highest court in the land” would be irrevocably harmed by spiraling expansions of the Court’s size. Indeed, former justice Stephen Breyer argued that expanding the Supreme Court would undermine the court’s functioning by lowering public trust. Creating an incentive to continuously expand the size of the Court means that appointments to the court would be both unquestionably partisan and fully beholden to the President that appoints them, shattering the principle of separation of powers and further harming the public’s trust in the Court.
Another drawback of expanding the Court involves the cost in political capital. Political capital is the idea that politicians can build up trust among their constituents and then exchange that goodwill to get policy passed. The difficulty of expanding the Supreme Court translates to a significant cost in political capital. Most conservatives despise any proposed expansion of the Supreme Court, and Speaker of the House Nancy Pelosi has said that she would not allow such a policy to reach the House floor. As a result, going beyond theory and implementing this policy in practice would require politicians to use significant amounts of political capital. If that were to happen, it would take oxygen away from other important issues. The key characteristic of political capital is that it is finite; its use in one area usually harms a politician’s ability to push policy in another area. Given the question of the efficacy of expanding the Supreme Court independent of whether it could be done, there are many better uses of political capital in today’s landscape. The issues facing our country are widespread and complicated, and compromising our ability to address them for a maneuver that could easily backfire is not the best use of our collective resources.
As a whole, reforming the Supreme Court is an admirable goal. It is not representative of the general public and as currently constituted, it appears set to attack the existence of many fundamental rights. However, expanding the size of the Supreme Court is not the answer because it risks destabilizing the institution and impeding politicians who seek to create additional change.