After a despicably rushed hearing process, Amy Coney Barrett was confirmed to begin her tenure on the Supreme Court of the United States on October 26. But with the undoing of the balance of the court and a newly 6-3 conservative majority, many are worried about what this means for the future of legislation and potential reversal of key landmark decisions. These include Oberfell v. Hodges, which legalized gay marriage and Roe v. Wade, which protects the right to abortion. With Barrett in place on the court, even the Affordable Care Act is in danger, too.
As a result of Barrett’s confirmation, questions have arisen about expanding the court to include more than the traditional nine justices — as have calls to abandon the Constitution altogether. But, can the court even be expanded? Short answer: Yes. Although the number of Supreme Court justices has remained at nine and has not been changed since 1869, as National Geographic reports, "for the first 80 years of its existence, the Supreme Court fluctuated in size from as few as five to as many as 10." In fact, the founders provided the ability to reshape the court for precisely those moments when it’s out of line with democracy and public values. But, changing it now — after it's remained static for well over a century — won't be easy.
Since Senate Republicans blocked Obama's nomination of Merrick Garland after Antonin Scalia died in 2016, the Supreme Court has tilted farther to the right, as Donald Trump has now appointed three justices: Neil Gorsuch, Brett Kavanaugh, and now Barrett. Considering the fact that Republicans have only won the popular vote in two of the last seven presidential elections, the fact that Republican presidents have appointed the majority of justices is an outrage — which is why the call to expand the court is the natural answer to the now ideological imbalance.
“While the number of justices serving on the Supreme Court has changed throughout history, it is apparent that some form of judicial reform is required now that the Republican Party has unilaterally politicized the Supreme Court. No Supreme Court nominee has been confirmed without a single vote of support from the non-nominating party since the 1800s. The Republican Party's unprecedented willingness to destroy the legitimacy of the judicial branch of government makes clear that judicial reform is necessary to maintain the impartiality of the judiciary tasked with upholding the Constitution and the rule of law free from political influence,” Dina Ninfo, Legislative Co-Chair of the Women's Bar Association of Illinois, tells Refinery29. “The Constitution belongs to the people, not to a political party.”
It's hard to know that by looking at the Supreme Court, though, where Barrett’s presence will undoubtedly mean a radical change in its approach to cases — undoing legislation defending human rights for years to come. That’s reason enough to expand the court, according to the advocacy group Take Back the Court, who explain that restoring balance is necessary because even with Democrats controlling the White House and Congress, it still won’t be enough to protect health care, LGBTQ+ rights, and more.
“The court is going to put the next administration in handcuffs on its first day. Any effort to restore democracy by banning voter suppression, any effort to solve policy emergencies like addressing climate change or providing access to reproductive health care is going to be dead on arrival. Given the stakes of the emergencies we face, there is no other option but to expand the supreme court,” Aaron Belkin, Director of Take Back the Court, tells Refinery29. “For example, the Democratic party has been clear that if it comes back in power it will ban voter suppression and ban gerrymandering. But the problem is if the Democrats come back into power and try to pass bills, the court will just strike those down. If you want to restore democracy, you have to pass legislation, which is why we need to expand the court in order to protect democracy legislation.”
Take Back the Court has researched the damage that the current Supreme Court has done by allowing hyper-partisan gerrymandering and dismantling the Voting Rights Act. But according to a February 2020 study, the dangers of the new 6-3 conservative majority are even greater still, especially to pressing issues like gender and racial equality. The report argues that the Supreme Court’s dismantling of women’s rights will far exceed the demise of Roe v. Wade. Details on current justices' career histories show how their views and previous judgments hint at the ways they'll act regarding protections that activists and litigators have spent decades building — putting pay equity, family leave, health care, child care, sexual assault survivors rights and more at risk. It really seems that structural reform of the judiciary is one of the only ways to fix a total gutting of human rights.
So what would expanding the court actually require? Congress would need to pass a law adding new seats to the court and the administration would appoint new justices to make it a fair and balanced court. In order to correct hyper-partisanship, many have come up with specific proposals, including former presidential candidate Pete Buttigiegm who advocated for expanding the Supreme Court to 15 justices in order to “depoliticize” it and restore balance to the court.
His plan proposed having five justices appointed by Democrats, five appointed by Republicans, and five “apolitical” judges chosen by colleagues. Others, like Take Back the Court, have proposed reforms to the Senate alongside court expansion, along with a more broad democracy agenda. This would mean eliminating things like filibusters, Senate holds, blue slips, and unanimous consent in order to un-rig the system, so that an expanded court could function properly.
Expanding the court is not a fringe demand, either. It’s supported by organizations and political leaders including Black Lives Matter, United We Dream Action, and politicians like Alexandria Ocasio-Cortez, Ilhan Omar, Rashida Tlaib, Ed Markey, and more. Of course, expanding the court is not the only option, and other calls to completely change the Constitution have also surfaced — with people asking why Supreme Court justices should have so much power to control people's rights to begin with, why they're given lifetime appointments, and if we need an entirely new document. Whatever happens, the current system is not working, and that much is clear.
“People want clean air, gun safety, and for women to be able to control their bodies, and for Black people to be able to vote. But this court has been making decisions at the expense of everyday Americans. It’s much more extreme than the public when it's supposed to reflect the public, and as it stands, the current Supreme Court poses a grave threat to democracy unless we take action,” says Belkin.