The Case for Expanding the Supreme Court Has Never Been Stronger

Biden
could have tried to stop such judicial overreach in 2021 by pushing to amend the Judiciary Act,
which sets the size of the Supreme Court. (In April of that year, House
Democrats put forth a bill to do exactly that, expanding the court to 12 associate
justices.) He chose not to, opting instead to create a court reform commission,
whose members were divided on
expanding the court. That group’s final
report summarized many of the arguments in favor of expansion, especially
the extraordinary actions by then–Majority Leader Mitch McConnell to refuse to
consider Obama’s nomination of Merrick Garland. But then they listed concerns. Some
scholars argued that expanding the court for partisan reasons would merely lead
to a cycle of tit for tat, undermining the court’s legitimacy.
Ultimately they decided
not to recommend it.

Three
years later, the validity of such arguments has vaporized. Repeatedly, the
court has overturned policy after policy, law after law, stifling the Biden
administration’s efforts on many fronts, undoing decades of precedents.
Republican court-packing has led to decisions that go far beyond the worst
fears of 2020. Most importantly, the majority on the court has revealed, in the
principled emptiness of its decision in Trump v. U.S. (not to mention
others in the past few weeks), that it is openly partisan. The Roberts court,
and the three Trump justices, have created chaos throughout our justice system
and society, and undermined the court’s legitimacy. They need to be checked.

Congress,
under the Constitution, is the most important branch, with almost half the text
of the Constitution (2,268 words) devoted to its many roles. The presidency takes
up only 1,025 words. The Supreme Court’s role, however, is third, with only 377
words. That’s because the Framers left much up to Congress to determine. The
Constitution recognizes the court’s role as guardian but leaves its oversight up
to Congress—including the size of the court.