Examining the Importance of Expanding SCOTUS

Mitch McConnell and the Federalist Society got their wish with Amy Coney Barrett and their 6–3 supermajority. It is crucial that Biden pushes to expand SCOTUS, which is precisely the bold policy that his administration won’t pursue.

Zach Salcido
5 min readNov 30, 2020

With record unemployment and historic economic volatility exacerbating pre-existing issues in housing, health care and food insufficiency, Mitch McConnell and his majority-Republican Senate spent the last weeks leading up to recess confirming Amy Coney Barrett to the U.S Supreme Court, rather than passing a much-needed coronavirus relief package for the American people. Barrett’s nomination as the ideological replacement to the late Justice Antonin Scalia solidifies a sustained effort by the President and his allies in the Senate as well as the Freedom Caucus to stack the Judiciary with ultra-conservative, pro-life, “originalist” judges who seem intent on overturning Roe v. Wade, the Affordable Care Act, and reconfirming Citizens United. The most confirmations to SCOTUS since the Nixon Administration, it requires no leap in logic to conclude that the crowning achievement of the Trump presidency is the profound impact on the Judiciary branch. As Joe Biden has in recent times resisted the idea of packing the Supreme Court, he assumed the lukewarm position of creating a commission to determine whether or not the Judiciary needs overhaul. With the risk of repeating an ideological shift to the right comparable to the Nixon Administration in the early 1970s, it behooves Joe Biden as the leader of the Democratic party to consider the implications of a commanding 6–3 conservative super-majority. The Constitution says nothing specific about the number of Supreme Court Justices, and it’s up to Congress to determine what that number is.

While the nature of President-Elect Joe Biden’s term hinges largely on the results of the January Georgia Senate runoff elections, the legislative potential of a trifecta cannot be understated. Barack Obama passed the Affordable Care Act in 2010 under a Democrat-controlled House and Senate, and Donald Trump passed his weighty 2017 tax cut that largely benefitted the wealthy and added a substantial amount to the federal deficit. Many have written about and otherwise expressed the importance of a trifecta, and the chances of a Biden Administration actualizing SCOTUS expansion without it are slim to none. This reality notwithstanding, the arguments against Court expansion are drawing even more dead as we exit the Trump presidency.

The cardinal argument from the right against Court expansion is charged with loaded political language along the lines of “undemocratic” or “unconstitutional.” The reality is that this is part and parcel of the same agitprop that conservatives elicit when it comes to any policy that reckons their demonstrable efforts to influence the tilt of the body politic. The Republican Party has lost the popular vote now in 7 of the last 8 presidential elections yet has picked the majority of Supreme Court Justices in the last few decades.

There is nothing undemocratic or unconstitutional about adding (or changing at all) the exact number of Justices on the Supreme Court. The Constitution purposely omits a specific number, leaving it to the Congress to decide. There is no guarantee that a Democrat-controlled Congress would even have a lock on votes from the likes of Joe Manchin-Blue Dog-Democrats in both chambers, however. Indeed, that wing of the party is in the driver seat for at least another Democratic presidential term. Joe Biden’s vapid calls for “unity” and “lowering the temperature” are indicative of the tepid neoliberalism that has been the “opposition” party in America for more than a generation. That means no Medicare for All, no Green New Deal, and almost certainly no entertaining talks of expanding SCOTUS.

ACB’s hyper-religious affiliation is no good sign for Roe v. Wade, either. The position on abortion on the part of the groups like People of Praise that Barrett espouses is no secret. The decades-old Republican and religious arguments against abortion reveal a deep hypocrisy within conservative ideology, one defined by a refusal to advocate for policy like paid maternal leave or properly funding early education while simultaneously trying to deny healthcare to those with pre-existing conditions and saying that 200,000 Americans dead from coronavirus “is what it is.” The Republican Party is effectively pro-forced birth while (somewhat successfully) branding themselves as the pro-life party. In the absence of federal protection under Roe v. Wade, the only abortions that women will lose access to are safe ones.

Biden’s win in the 2020 general election is great news for the wealthy liberal class and the status quo, and the blue-checkmark Twitter liberals can finally go back to brunch. The ugly truth of Amy Coney Barrett’s confirmation is that the Supreme Court (and American government more generally) in recent years has not been yielding the most lowercase-d democratic results. Anyone with a loose understanding of Supreme Court decisions and jurisprudential procedure in the United States can understand the weight of precedent and super-precedent, concepts that are relevant to various undemocratic decisions from the Supreme Court. Citizens United, a 2010 decision, declared campaign donations as free speech under the First Amendment and enabled private corporations to pump nearly endless amounts of money into political campaigns and processes. ACB, the most pro-corporation Justice on the Supreme Court maybe ever, could very well institute a precedent with Citizens United that the Democrats would be hard-pressed to reverse in the short term. That means more of the same old, same old dirty and corrupt American politics where everyone in D.C is bought and paid for by one private industry or another.

The implications of a conservative SCOTUS supermajority for potentially multiple generations cannot be overstated. Joe Biden’s early Cabinet picks are not a great sign of his willingness to embrace bold progressive policy, if we ever had any reason to believe that he would embrace it at all. If his political track record is any indication, the best we can hope for from a Biden Administration is a push for term limits on Supreme Court Justices. 18-year limits have been floated by some on the left, which stops the bleeding about 18 years too late. This sort of watered-down compromise to the benefit of the Republicans is exactly the type of compromise that got us the Affordable Care Act (which a 6–3 conservative court could very well strike down) instead of something more closely resembling a universal system and that simply wouldn’t rise to meet this important moment. By the time this bench’s terms would be up, the damage to campaign finance law, national health care and bodily autonomy will have already been done. Anything short of SCOTUS expansion simply will not cut it, and if the Democrats do manage to pick up two Senate seats in Georgia come January 5th, the ball will be in Biden’s court.



Zach Salcido

Oregon Law student. Interested in writing about politics, public policy, and law.