Can Democrats Sell Expanding The Court?

Yesterday, four Democrats introduced legislation to expand the Supreme Court from nine seats to thirteen seats, which would mark the first time the size of the Supreme Court has been changed since the Grant administration. President Joe Biden has also formed a commission to “study the effects” of expanding the Supreme Court.

The Constitution does not tell us how many justices are on the Supreme Court, that’s for Congress to decide. As Harvard Law and Policy review pointed out in a 5/6/2019 article, all of the previous attempts to change size were done purely for partisan reasons:

When Chief Justice John Marshall wrote Marbury v. Madison, he sat as one of six members of the fully-staffed Supreme Court. President John Adams and a lame-duck Federalist Party congressional majority shrank the size of the Court from six to five in 1801 to limit Thomas Jefferson’s appointments to the bench. The new Democratic-Republican majority under President Jefferson quickly restored the sixth seat and expanded the Court to seven seats in 1807 when Congress created a seventh circuit court.

Congress expanded the Court from seven to nine members under Andrew Jackson in 1837. And thirty years later, during the midst of the U.S. Civil War, President Abraham Lincoln named a tenth justice to the Supreme Court, apparently motivated partly by a desire to ensure the Court would not interfere with Union war tactics.

Congress’s actions to shrink the Supreme Court from ten to seven immediately after the war were even more nakedly partisan. Congress denied President Andrew Johnson the ability to nominate justices who might oppose the congressional Reconstruction plan. President Ulysses Grant increased the Court back to nine seats after it ruled “greenback” paper currency unconstitutional, giving him two extra appointments. The newly constituted Court reheard the case and reversed.

However, Americans are much less likely to go along with “partisan politics” today than they were a couple of centuries ago. While we hear all this talk about how we’re “more divided than ever,” in truth the major thing that has changed is not our division, but our dislike of our division. One of the people who best understands this is Joe Biden, who ran for President in 2020 basically only on the platform of not dividing America. Even in his Inauguration Speech on 1/20/2021, he resisted being partisan, even denying he would do such a thing:

To all those who did not support us, let me say this: Hear me out as we move forward. Take a measure of me and my heart. And if you still disagree, so be it. That’s democracy. That’s America. The right to dissent peaceably, within the guardrails of our Republic, is perhaps our nation’s greatest strength. Yet hear me clearly: Disagreement must not lead to disunion. And I pledge this to you: I will be a President for all Americans. I will fight as hard for those who did not support me as for those who did.

The Radical Republicans who controlled Congress during the Johnson and Grant administrations would not be allowed in even the most radical places of the two parties today, because their rhetoric would be declared to “divisive” (and it was, it strongly divided slaves from slave owners) and as such be fought tooth and nail out of the Overton window.

Because of this, Democrats are making a rather large messaging mistake when they say this is about Trump. Jerry Nadler said yesterday that this is actually “unpacking the court” from Donald Trump’s Supreme Court Justices. However, making this about Donald Trump is making this look like nothing more than partisan politics, which is the one thing Americans are most afraid of at the moment.

If Democrats want this to be something America seriously considers, they need to make this look like they’re doing it for reasons other than revenge. The argument should be that it’s just time to expand the Supreme Court for this or that reason, or that more justices would improve the Supreme Court long-term in some way.

However, can this idea be separated from partisan politics? Possibly, but not at any point in the near future. Considering the idea first came into political discourse after Amy Coney Barret was first nominated to the Supreme Court in 2020, while it’s not impossible to remove the idea from partisan politics, it would take some time for such dots to not be connected. This is not helped by the fact that Democrats are, as mentioned above, specifically making this about Donald Trump when it does not even need to be.

At this rate, it’s unlikely any legislation with the goal of expanding the Supreme Court will get popular support, and unless Democrats change up their messaging, I don’t see that changing anytime soon.