Can Democrats Increase the Number of Justices on the Supreme Court to 13?

Introduction

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The recent political landscape in the United States has raised questions about the future of the Supreme Court. Many have wondered if Democrats, gaining control of both the presidency and the Senate in an election, will attempt to increase the number of justices on the Supreme Court. This article delves into this topic, exploring the constitutional limitations, historical precedents, and potential impacts.

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Constitutional Limitations and Filibuster

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The current makeup of the Supreme Court is not set by the Constitution. Instead, it is governed by the Congress through legislation. As of now, there is no explicit limit on the number of justices. However, adding justices would require changing the rules of the Senate, particularly the filibuster.

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The filibuster, a controversial procedural device in the Senate, still applies to legislation that would be needed to add justices to the Supreme Court. To change the number of justices, Democrats would need to override the filibuster, which requires 60 votes to invoke cloture. Alternatively, unlimited debate can be ended with the support of 51 senators, but this often results in significant political fallout.

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Historical Precedents and Precedent for Court Packing

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It is not uncommon for one party to attempt to alter the composition of the Supreme Court, especially in response to what they perceive as political imbalance. Throughout American history, there have been several instances of court-packing, often as a reaction to perceived partisan bias in the judiciary.

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For example, critics of the Republican Party argue that the confirmation of Amy Coney Barrett in 2020 was rushed, reflecting an attitude that allowed the GOP to stack the Court. This has led some to believe that a Democratic-controlled Congress might attempt to counterbalance this perceived imbalance, advocating for court-packing measures.

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Political Feasibility and Optics

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Despite the theoretical possibility, the actual implementation of such a measure is highly improbable due to the political climate. The leadership in both the House (Pelosi) and the Senate (Schumer) is against such a proposal. Further, the Republican Party remains vehemently opposed to any court-packing proposals, making it unlikely that they would support such a measure even if Democrats gain control of both chambers.

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The " optics " of court-packing would be extremely damaging to any political party attempting it. Public perception and the potential backlash would be severe, leading to a significant loss of political capital. Even if Democrats were to take control of the Supreme Court, they would likely lose majorities in Congress and the presidency, rendering such a proposal moot.

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Alternative Proposals to Address Supreme Court Composition

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Fairly or not, the current composition of the Supreme Court is seen as a key factor in its decisions. Some advocates propose alternatives such as term-limited chief justices or expanding the number of justices.

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One proposal suggests reducing the Court to 10 justices, with one appointment per year. Another, more radical suggestion is to increase the number of justices to 21 or 25, implementing term limits for chief justices. These changes would aim to reduce partisan influence and improve the representativeness of the Court.

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I personally have argued for a 10-justice Court, with one member being a trainee or alternate for a year. This could be the Chief Justice awaiting their final term. Another suggestion discusses a larger Court that would better reflect the demographics of America, providing a more inclusive and stable judicial system.

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Conclusion

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While there is historical precedent and theoretical feasibility for Democrats to increase the number of justices on the Supreme Court, the political realities and public perception make such an attempt highly improbable. However, alternative proposals for reform, such as term limits and a larger court, offer potential solutions to the current issues faced by the Supreme Court.

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