Rep. Jim Clyburn, D-S.C., is a powerful and respected member of Congress who has generally pushed this country in the right direction, but his suggestion that the Supreme Court be expanded from nine justices to 13 is a waste of time and energy. The same holds true for other proposals to tinker with the court’s institutional structure, whether through term limits or limiting its jurisdiction. Not only do such proposals have no chance of being enacted, if they were enacted, they would further erode the court’s waning legitimacy.
On NBC’s “Meet the Press” on Sunday, Clyburn said that “13 is a pretty good number. A baker’s dozen would be a good number to have on the court.” As The Washington Post has noted, Clyburn isn’t alone in his party. Democrats want to do something about “the court’s rightward turn.”
A call for expansion doesn’t address the real reasons the Supreme Court has taken a radical right turn over the last few years, namely that Democrats have lost four of the last seven presidential elections.
There has been a rightward turn, and Democrats’ anger at the Supreme Court is warranted. Chief Justice John Roberts’ court favors the rich, has stripped rights from the powerless and is cozy with the well-connected. And Democrats aren’t the only ones upset. Decisions that include overturning the constitutional protection of abortion, granting immunity from criminal prosecution to the president and gutting the Voting Rights Act have caused Americans to think less highly of the Supreme Court.
But a call for expansion doesn’t address the real reasons the Supreme Court has taken a radical right turn over the last few years, namely that Democrats have lost four of the last seven presidential elections. Democratic presidents have had fewer opportunities to appoint justices than Republican presidents have had. During that time frame, Republican presidents have filled nine vacancies of the Court, and Democrats have filled only four.
Winning elections comes first. Then comes the appointment of Supreme Court justices. Only then will there be changes in the court’s ideological direction. Democrats should focus on winning if they want to change the Supreme Court. No, it’s not a quick fix, but it is the only feasible one.
Proposals like Clyburn’s are fanciful in that there’s not nearly enough public support for them. According to the results of a Marquette University poll conducted in May, “the public is evenly divided on proposals to expand the size of the Court, with 50% in favor of adding more justices and 50% opposed. Opinion on this has varied little since the question was first asked in Marquette Law School Poll surveys in September 2019, when 42% favored enlarging the Court …”
Former President Joe Biden, soon after he was elected, convened a commission to analyze “the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
The Biden commission’s report was “brushed aside,” as Politico put it, “by a president largely resistant to large-scale reforms.” Only after the Supreme Court’s presidential immunity decision in July 2024 did Biden change his mind and support court reform. It was too late then.
We have seen this drama before. During the heyday of the Warren court and its embrace of progressive jurisprudence, Republicans were calling for radical reforms.
We have seen this drama before. During the heyday of the Warren court and its embrace of progressive jurisprudence, Republicans were calling for radical reforms. Specifically, they wanted to take away the court’s jurisdiction to hear particular kinds of cases. The unsuccessful Jenner-Butler bill, which would have stripped the court’s authority to review rulings against people suspected of subversive activity, was “supported mostly by conservative Republicans, and by Southern Democrats already in a vengeful mood against the Supreme Court for its desegregation decisions.”
Relatedly, there was a time in the 1950s and 60s that “Impeach Earl Warren” billboards dotted the American countryside. All for naught.
Any efforts by today’s Democrats to rein in what’s really a radical court will also be for naught.
The path to change remains the same as it has always been. It is through the ballot box.
There is no guarantee. Nor is there any point in Democrats proposing legislation they know won’t go anywhere. Sen. Sheldon Whitehouse of Rhode Island told the Post, “Even in a Congress like this one, where (Supreme Court reform) bills have no chance of passage, it’s really important to file them and to stand by them, because they reassure people that there is in fact a mechanism by which the court could be restored to some degree of better order.”
He’s wrong. Such bills don’t do that at all. They’re most likely to go unnoticed, and even people who do notice them won’t be reassured by an obviously futile effort.
Democrats are wasting their time with innovative plans. Because the only useful plan is already known: win the presidency; win control of Congress. Use the appointment process to redirect the court.
It’s a time-tested, tried-and-true formula, and it is the only one that will work for the future.
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