FAQS

1) What’s the reason for expanding the Supreme Court?

We can’t restore American democracy or solve big national challenges like climate change, racial justice, access to affordable health care, and economic inequality unless we take back the Court. The Supreme Court should be the last line of defense against attacks on Americans’ fundamental rights. Instead the stolen, hyper-partisan Court majority routinely sides with big business and wealthy Republican donors over working families. And by permitting racist voter suppression, partisan gerrymandering, unlimited corporate political spending, and union busting, the current Court is complicit in the right-wing assault on free and fair elections. Adding seats is the only practical, proportional way to reverse the theft of the Supreme Court and restore its balance, integrity, and independence.

2) Who supports Court expansion?

More than 100 organizations ranging from civil rights and pro-democracy groups to climate and immigration advocates support expansion. A wide range of elected officials, Supreme Court experts, and activists have also called for adding seats. Among them: former Attorney General Eric Holder, former Presidential Candidate Julián Castro, Senators Ed Markey and Elizabeth Warren, House Judiciary Chair Jerry Nadler, and several other members of Congress including Tina Smith, Alexandria Ocasio-Cortez, Cori Bush, Mondaire Jones, and Brendan Boyle. The Judiciary Act of 2021 now has more than 50 co-sponsors in Congress.

3) What would the Founders say?

They'd say to follow the Jefferson precedent. The Founders understood that the way to deal with partisan efforts to steal Supreme Court seats was to address the problem head on by adding seats to undo the norm-breaking. After Thomas Jefferson won the presidential election, the outgoing Congress eliminated a Supreme Court seat to try to prevent him from filling it. He responded by working with his new supporters in Congress to add that seat back as soon as he took office.

4) What is the process for expanding the Supreme Court?

All it takes is for Congress to pass a bill and President Biden to sign it into law. In practice, passing a Court-expansion statute would require the Senate to eliminate the filibuster.

5) Wouldn't expanding the Court create a "race to the bottom" if future administrations retaliate by packing the Court?

The risk of escalating responses is overstated. Norms have already been broken to steal the Court. Concerns about efforts to do so again in the future shouldn’t prevent trying to fix the problem in the here and now. Expansion is the only way to restore the Court, and if the Court is stolen again, the country won't be any worse off than today. Cycling between one party stealing the Court and another party restoring it is far better than unilateral surrender.

6) Isn't expanding the Court risky?

If Congress expands the Court and restores democracy by banning dark money, voter suppression, and partisan gerrymandering and providing automatic voter registration as well as statehood to DC and an option for Puerto Rico to choose statehood, among other reforms, the Brennan Center estimates that 50 million voters would be added to the rolls. These voters would protect against continued efforts to rig democracy. Court expansion is the only Court reform that enables the un-rigging of the system and the restoration of democracy.

7) Would expansion undermine the Court’s legitimacy?

The biggest threat to the Court’s legitimacy are ill-gotten rulings including the overturning of democratically enacted laws and longstanding, hard-won rights in order to advance a partisan political agenda as well as the interests of corporations and the billionaire class.

8) How many justices should be added to the Supreme Court?

At least four. That’s what it will take to unpack the stolen Court, allowing Congress to restore American democracy and tackle urgent national challenges like climate change, racial justice, access to affordable health care, gun safety, and more.

9) Won't discussing Court expansion energize some voters?

No. Careful social science research shows that candidate endorsement of Court expansion will not have electoral consequences. We also found that Republican Senate candidates in 2020 did not prioritize Court reform in their paid advertising. The lack of spending — despite Court expansion being in the news in the weeks before the election — is clear evidence that they did not believe it would motivate conservative voters or persuade swing voters.

10) Have there always been nine justices on the Court?

No, there is no requirement in the Constitution for a fixed number of justices. Congress has actually changed the Supreme Court’s size 7 times through legislation, previously having set the number of justices on the Court to as few as 5 and as many as 10. And of course, it had only eight justices for a time when Senate Republicans violated all historical norms to hold the late Justice Antonin Scalia’s seat open until it could be filled by a Republican president.

11) What about other alternatives for reforming the Court?

There are a number of reforms—including term limits and a code of ethics for Supreme Court justices—that Congress should pass in addition to adding seats. However, none of those alternatives would immediately rebalance the Court to end the illegitimate right-wing stranglehold and restore the Court’s integrity and independence. Other reforms would leave in place a conservative majority for the foreseeable future, and are therefore at great risk of being overturned by the very Court they mean to reform. The one exception is Court expansion. Congress could pass a Court-expansion bill and immediately add new justices to the bench, thus preventing the current majority from striking down the law.

12) Didn't Franklin Delano Roosevelt sink his presidency by attempting to expand the Court in 1937?

He certainly didn't sink his presidency. In fact, he went on to win two more elections, in 1940 and 1944. Some historians believe that FDR saved the New Deal by threatening to expand the Court. While many historians believe that Democrats' significant losses in the 1938 midterm elections resulted, at least in part, from FDR's plan, the difference now is that Court expansion would enable Congress to add 50 million voters to the rolls (see #6 above).

13) What about the lower federal courts?

We should expand them too. The Senate prevented former President Obama from filling more than 100 openings at the district and appellate levels, using unprecedented obstruction to prevent him from filling seats with qualified nominees and leaving them open to fill. As a result, Donald Trump appointed a disproportionate share of federal judges for a one-term president. Unsurprisingly, he filled those seats with overwhelmingly white and male jurists. The lower courts also face a long backlog of cases. Congress has a long history of expanding the lower courts when that happens, and there is growing momentum in both the House and Senate to do so again.

14) Isn't eliminating the filibuster risky?

What is truly risky is retaining the filibuster with only eleven years left on the climate change clock. The filibuster, in tandem with some Senators’ unwillingness to put national interests above partisan concerns, even during emergencies, makes it all but impossible for Congress to solve core national problems.