Demand That Candidates Say “Expand the Court”

We need Democrats to embrace partisanship

What should we do about the out-of-control Christofascist Supreme Court? “I think everything needs to be on the table,” very centrist Pennsylvania Governor and woul-be 2028 presidential nominee Josh Shapiro said when asked that question last week following the narrow 5-4 decision defending birthright citizenship.

That echoed the language from very centrist House Minority Leader Hakeem Jeffires, who responded to the court’s pro-racist gerrymandering decision by stating, “We’re going to have to do something about this Supreme Court. And let me be very clear: everything is on the table.”

Very centrist former Transportation Secretary and would-be 2028 presidential nominee Pete Buttigieg was even more explicit. The court, he said, had gone “rogue” and needed to be reformed. There “doesn’t have to be nine,” he said.

It’s a very hopeful sign that centrist party leaders, not just progressives, are starting to speak openly about the need to expand the court. We need more of them to sign on—and we need them to do so in more explicit and clearer terms.

As Jeffries and Shapiro demonstrate, even Democrats who are thinking about court expansion tend to cloak the policy in euphemism or ambiguity. If we actually want court-expansion to happen, though, we need politicians who are willing to say precisely what they want, and to promise to do just that. More, we need to get used to thinking of partisanship, not as an embarrassment or a barrier to change, but as a core antifascist tool.

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Why they don’t want to say “expand the court”

I’ve written before about why we need to expand the court. The argument is pretty straightforward.

The court is currently ruled by a brutal Christofascist majority; it sees itself as an all-powerful legislature. And as an all-powerful, Christofascist legislature, the court is determined to prevent any and all efforts to restore democracy and end Christian authoritarian. If you do not expand the court, virtually nothing is possible. If you do, everything is.

As Jeffries, Shapiro, and Buttigieg show, many Democrats understand this logic, and/or want to cater to voters who understand this logic. Yet many are still reluctant to say so unambiguously. Why is that?

The main answer is that politicians watch polls, and while some sort of court reform is wildly popular, expanding the court is not. Here are some court reforms and their popularity with the electorate according to a Brennan Center poll from March.

Mandatory retirement age for justices—73%

Term limits for justices—73%

National elections for justices—55%

Retention elections for justices—53%

Overturn rulings via referendum—53%

Add seats—46%

There is a big difference between 73% support and 46% support. The first is a massive bipartisan majority. The second is a narrow partisan minority. In fact, 84% of Democrats and 61% of Republicans support term limits. In contrast 66% of Democrats support adding seats, compared to only 23% of Republicans.

That big difference makes politicians eager to talk about reform in a way that they hope will lead voters to think about the reforms they like rather than about the ones they don’t. When Jeffries and Shapiro say “all options are on the table,” they want voters to understand that that maybe means term limits, maybe means mandatory retirement ages, maybe means anything but adding justices, which a lot of people (especially a lot of Republicans) don’t like.

And if you’re just looking at polls, it makes sense to shilly-shally and then maybe settle on the most popular reforms. The problem is that if you do that, you will not actually curb the Christofascist court, which will then subjugate and/or kill us all. Which is, in my opinion, a bad outcome.

Why they have to say “expand the court”

The popular court reform items—term limits and age limits—are explicitly forbidden in the Constitution, which says that Supreme Court justices serve for life. Nobody believes that there is a real possibility of changing the Constitution in this respect, certainly not quickly. These reforms are a dead letter.

More, even if instituted, these reforms would not solve the problem. That problem being that the current justices hate the Constitution and want to impose a Christofascist substitute by judicial fiat. Term limits and/or age limits could simply not be instituted in a bipartisan way that would result in a Democratic majority on the court given the fact that (a) most of the Christofascist justices are young and were placed on the court not that long ago, and (b) any plan that did change the balance of the court would be fiercely opposed by Republicans and their voters, causing that bipartisan 73% approval to quickly drop to something much more like a partisan 46%.

Legal analysts and writers love to think of themselves as clever and nonpartisan, and so there have been a range of more or less clever nonpartisan-y ideas for court reform that attempt to finesse the issue—plans, for example, to set an age limit after which SC justices become emeritus and are farmed off to a ceremonial position, to put in place ethics reforms, to curb the shadow docket.

Some of these might help more or less. But most of them won’t really address the problem, and again, if they do address the problem they will immediately become very unpopular with Republicans. That is because the problem with the court is a problem of Christofascist partisanship.

Republicans have used the disproportionate power of white rural voters in the Senate to pack a massively partisan, rabidly Christofascist court. The only effective response is to embrace antifascist partisanship to pack those motherfuckers right back.

That means that, while you can certainly make other reforms, the core, immediate, vital need is to add more justices. Period.

And if you need politicians to add more justices, then you need politicians to promise, explicitly, to add more justices. Contrary to conventional wisdom, there is a ton of political science research that shows that most politicians do in fact try to deliver on their campaign promises. But they also often try to phrase promises in a way that gives them a lot of latitude to avoid making difficult choices or that allows them to weasel out of uncomfortable demands.

Jeffries and Shapiro are giving themselves room to weasel. Buttigieg is giving himself less room. Ideally, we should demand from 2028 Democratic candidates that they get even less weaselly than that. We should demand that Democratic candidates outbid each other on Supreme Court reform. Promise to end the filibuster and add 4 justices. Promise to end the filibuster and add 17 justices. Promise to end the filibuster and add 50 justices. The more the better. We want the current right-wing robed Christofascists to squawk and whine and be so frustrated and angry they just resign in disgrace.

What about elections?

But wait a minute, you might say. We do want to crush the fascist corrupt Constitution-hating Republican court when we’re in office. But if expanding the court polls badly, shouldn’t we try to avoid saying that’s what we’re doing? Maybe it’s worth giving our weaselly Democratic reps some weasel room if it means they can get into office in the first place.

Obviously winning is important. But there are a couple things to consider.

First, 46% support for expanding the court is not bad. It’s not 50%, but it’s close—and if Democratic leaders actually embrace the policy forcefully, you can probably raise its popularity with Democrats and Democratic leaning independents.

Second, if recent elections have shown us anything, it’s that the electorate does not vote primarily on the basis of issues. They are much more motivated by rage at high prices and a desire to throw the bums out. Republicans ran in 2024, as always, on a platform of lowering taxes for the wealthy (which is unpopular) and restricting abortion rights (which is also unpopular.) That didn’t matter because inflation was up, Biden’s popularity was in the toilet, and that created an unstoppable anti-incumbent wave.

If big, straightforward easy-to-understand policies like soaking the rich and abortion rights don’t move the needle, procedural tweaks aren’t likely to have much of an effect on anything. Do we really think that Supreme Court reform is going to be in the top five issues that people are voting on in 2028? In the top ten?

In 2026, Democrats are riding that anti-incumbent wave—and it seems likely, given Trump’s incompetence and unpopularity, that they will do the same in 2028. Given that advantage, it seems like winning the election can maybe take a back seat for once to instituting the single most important policy of the cycle, and possibly in the nation’s history. If you win all the elections, and the Supreme Court systematically invalidates all your policies, have you really won? (You have not. You have lost to fascism. And you are fucked)

Finally, it can’t be emphasized enough that expanding the court is absolutely vital if Democrats want to win any elections beyond 2028. As analyst G. Elliott Morris has pointed out, the Democrat’s real challenge is going to be to somehow avoid the midterm curse and the increasing anti-incumbent bias so that they can continue to hold power in 2030, 2032, and hey maybe even a little beyond that.

To do so, they are going to need to rectify the Senate and House imbalances by enfranchising DC, ending racist gerrymandering and putting in place stringent campaign finance provisions. They’ll also need to actually pass their popular policies—like raising the minimum wage, taxing the fuck out of wealthy, lowering healthcare costs (ideally through M4A), and so forth.

But none of that is possible without expanding the court. If the Democrats get into office and once again let Republicans on the Supreme Court gut the majority of their agenda and lock in GOP electoral advantages, they are sunk, and so is the country.

Democrats are in a good position to win the next couple of election cycles. But that will be useless if they don’t start to embrace partisanship as a tactic and a value. We need to recognize that we are in a nightmare created by fascist partisans, and only a forthright partisan response is going to get us to a better place.

A good place to start is in demanding our candidates promise to take the most important first steps to defeating the fascists—which is to expand the court and bury the Christofascists in colleagues who do not suck.