The Democrats’ Love/Hate Relationship With the Supreme Court
This one follows on from Is Democracy Really Under Siege, and If So, From Whom?, and relates to two other pieces here: Is the Supreme Court Really Partisan? and What Is the Uproar About the Latest Supreme Court Ruling on Gerrymandering?
House Minority Leader Hakeem Jeffries stood in Atlanta this week and called the conservative wing of the Supreme Court a “subsidiary” of the MAGA movement. Asked about options for dealing with it if Democrats retake power, he said there’s “a variety of different options that are on the table, and I think we can’t foreclose on any single one of them.” Kamala Harris wants 13 justices instead of nine. A group of Senate Democrats reintroduced a bill in July for 18-year term limits. Colin Allred, running for a Texas House seat, posted that the Court “has sacrificed its legitimacy” and needs expansion, term limits, and a binding ethics code, in that order.
None of this is new. What’s new is who’s saying it.
1937: Democrats Kill the Idea
Court size isn’t fixed by the Constitution — the number nine is a tradition only since 1869. But the modern move — changing that number specifically to override an unfriendly majority — is a Democratic invention, and Democrats killed it themselves.
Franklin Roosevelt proposed adding up to six new seats — as many as fifteen justices total — after a conservative majority struck down several New Deal laws. He couldn’t say that was the reason. Admitting it would have looked like exactly what it was: an attempt to stack the Court. So he framed the bill as judicial efficiency — the justices were old, the docket was backed up, the Court needed younger blood. The real motive was a majority that would stop blocking his legislation.
He had just won reelection in a landslide, with overwhelming majorities in both chambers. He lost anyway.
The bill died for several reasons at once. His own party’s Senate Judiciary Committee buried it. Public resistance wore it down. Chief Justice Hughes exposed the cover story in a letter to the committee, stating flatly that the Court was fully abreast of its work and had no backlog — undercutting the one justification Roosevelt could say out loud. The Court itself started upholding New Deal legislation. And a sitting justice retired, letting FDR replace him with someone friendlier to his policies through the ordinary process, which took the urgency out of the fight.
The reasons were mixed. The result wasn’t: a Democratic Congress, under a wildly popular Democratic president, declined to alter the Court to secure ideological control even when it could have.
1953-1969: Fine With an Activist Court, When It’s Theirs
The Warren Court ran from 1953 to 1969 and presided over one of the most sweeping expansions of constitutional rights in the Court’s history — school desegregation, one-man-one-vote reapportionment, the incorporation of the Bill of Rights against the states, Miranda warnings. The dominant liberal response celebrated that activism rather than condemning it — because it wasn’t their complaint to make. The complaint belonged to the losing side, and the losing side was conservative. That’s the pattern worth holding onto: “the Court shouldn’t be making law” is not a fixed constitutional philosophy. It’s the language of whoever currently loses there.
Roe arrived in 1973, decided 7-2, and the majority included three Nixon appointees — Burger, Blackmun, and Powell. Nixon’s fourth appointee, Rehnquist, dissented. A Republican president had, within a few years of taking office, appointed four of the Court’s nine justices and still couldn’t stop it from doing exactly what the Warren Court had been doing for two decades. Ruth Bader Ginsburg herself later said Roe moved too far, too fast, on shaky doctrinal ground, short-circuiting a political process that was already liberalizing abortion law state by state. That’s not hostility to the outcome. That’s discomfort with the mechanism — and it came from someone the mechanism had just benefited.
Nobody proposed expanding the Court in 1973 either. Why would they? It was working.
2021-2022: The Idea Gets Revived by the Side That Buried It
The Federalist Society was founded in 1982 as part of a conservative and libertarian legal movement built to challenge the jurisprudential assumptions that had dominated since the Warren era — limited government, separation of powers, courts saying what the law is rather than what judges think it should be. Over the next forty years, that movement built the intellectual and personnel infrastructure that transformed Republican judicial appointments. It’s tempting to date the Democratic revival of court expansion to Dobbs in 2022, but the record is a year earlier and sharper than that: Senator Ed Markey and Representative Jerry Nadler introduced a bill in April 2021 to expand the Court from nine to thirteen seats, citing the Garland blockade in 2016 and the rushed Barrett confirmation in 2020 as the reasons the existing majority was illegitimately built. Dobbs came fourteen months later and confirmed what the 2021 bill had already assumed. Court expansion — the exact idea Democrats killed in 1937 — was back in mainstream Democratic politics before Roe was even overturned, and it’s stayed there since. Not from the fringe. From a former vice president, from sitting senators, from the House Minority Leader.
Compare the two proposals making the rounds right now. Eighteen-year term limits doesn’t change what the Court can do, only how often its membership turns over — a structural reform with actual bipartisan intellectual history behind it, since a Court that turns over every two years on a fixed schedule is a different kind of check than one that turns over only when someone dies or retires strategically. Thirteen justices is a different animal entirely. It doesn’t reform anything. It dilutes a majority Democrats don’t currently have the votes to win the ordinary way. The only theory under which court-packing makes sense is: this body functions as a second legislature, and we need a headcount majority on it. Which is precisely the theory Democrats spent the better part of the last decade insisting only the other side believed.
The Arithmetic, Not the Principle
Here’s the part that explains all of it. Democrats held the House for most of the mid-20th century, with brief Republican interludes in the late 1940s and early 1950s, then controlled it continuously from 1955 to 1995 — forty straight years — and held the presidency for long stretches besides. Add the Warren Court on top of that, and you get a party for whom an activist, favorable Supreme Court wasn’t an aberration — it was the default weather. A party that has never had to build a permanent strategy for operating without the Court on its side doesn’t reach for “let’s change the size of the Court” until the Court stops being on its side — or until the party concludes, as the 2021 bill’s sponsors argued, that the majority was built by breaking the rules in the first place. That happened in 2021, and Dobbs the following year removed any doubt. The idea Democrats spent over eighty years treating as too dangerous to use even against a court blocking their own president’s agenda was back on the table before they’d even lost Roe.
That’s not principle. Principle doesn’t flip when the win column does. It’s arithmetic — and it’s worth saying plainly that the arithmetic runs both directions. The conservative legal movement’s complaint about “legislating from the bench” is exactly as positional as the Democratic complaint about an “illegitimate” Court. Both sides have spent the relevant decades holding the position that happened to suit whichever branch they didn’t currently control. The difference is only that Democrats got there first, in 1937, and then had the discipline to talk themselves out of it. Whether that discipline survives a second look in 2026 is the actual question Jeffries left unanswered in Atlanta.