With the confirmation of Amy Coney Barrett, the idea of expanding the US Supreme Court has caught fire among some Democrats. With a 6-3 conservative majority on the court, prominent progressive Democrats like Representative Alexandria Ocasio-Cortez argue that if Democrats win this election term, they should seriously consider increasing the number of justices. In this context, is an expansion of the US Supreme Court really possible?

Assuming Democrats control the presidency, senate, and house in 2021, what can Republican legislators do to stop a SCOTUS expansion?

  • 1
    The Supreme Court's size is set by legislation, not the Constitution. Its initial size was set to 6 in 1789, and changed sizes several times between then and 1869 (including court sizes of 7, 9, and 10 justices) before settling to it current size of 9.
    – chepner
    Commented Oct 28, 2020 at 18:57

3 Answers 3


Sure, they can.

The last time this subject came up was 1937, with President Franklin Roosevelt.

The Supreme Court had struck down a good portion of his New Deal as unconstitutional. As a result, Roosevelt put forth a plan to expand the SC to 15 judges, which would give him six new appointees... enough to reverse the decisions that did not go in his favor.

However, this was opposed and shot down by the Senate.

And in the end, it was unnecessary. By 1942, the majority of justices were appointed by Roosevelt, and the industrialization of the war made the parts of his New Deal shot down by the court, superfluous.

  • 4
    I'm not sure the FDR comparison is valid. While I'm not familiar with all the aspects, your link says it never came to a vote before congress. And crucially it was opposed by members of his own party. Functionally it does not speak to what the minority party can do to prevent similar changes that enjoy the backing of the majority party in the Senate.
    – Jontia
    Commented Oct 28, 2020 at 17:49
  • My point is: Congress can change the number of Supreme Court judges, and it has been contemplated in the past. The Roosevelt experience is a valid comparison: the nation did not have the political will to allow this, as expressed by members of his own party.
    – tj1000
    Commented Nov 5, 2020 at 19:48

There is little that Republicans in Congress would be able to do to block the change in the law that would be required. While Republicans can attempt to do a filibuster, the nuclear option can be used by the Democrats to override the 60-vote requirement.

The only thing that Republicans can really do about this kind of legislation is to challenge its constitutionality in the courts. Such a challenge would, inevitably, get to the Supreme Court, and it's unclear how many of the vacancies created by this legislation would be filled (and thus have a pro-liberal majority rather than a pro-conservative majority) by the time it got there. Of course, even if none of the newly-created seats are filled, there is no guarantee that such a challenge would be successful.

  • 8
    What kind of legislation are you envisioning being challenged in the courts? Are you proposing that the Supreme Court could overrule congress on the size and makeup of the court?
    – divibisan
    Commented Oct 27, 2020 at 21:49
  • 15
    It's hard to imagine how such a law could run afoul of the constitution. Do you have any example of a provision that might be struck down? How is a law saying that there are ten or twelve associate justices unconstitutional when a law saying that there are eight isn't? Who would even have standing to challenge the law in the first place?
    – phoog
    Commented Oct 27, 2020 at 22:00
  • 5
    Since the Republicans have repeatedly expanded state Supreme Courts, I doubt they could make a case on the federal level. Commented Oct 27, 2020 at 22:15
  • 22
    @MartinSchröder "The Republicans have done one thing and argued the complete opposite when convenient for them" is the precise reason that that we're discussing this in the first place.
    – Brondahl
    Commented Oct 28, 2020 at 12:07
  • 3
    @hobbs Congress could impeach the justices. Although we're starting to get in dangerously hypothetic scenarios, it's technically possible.
    – JS Lavertu
    Commented Oct 28, 2020 at 13:58

Assuming Democrats do not have 60 votes in the Senate, Republicans can filibuster any legislation to increase the size of the court.

Legislation is required to change the size of the court, as discussed via the various acts used to change it in the past.

The size of the Court was first altered by an 1801 act which would have reduced the size of the court to five members upon its next vacancy, but an 1802 act promptly negated the 1801 act, legally restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.[76]

Democrats could then respond by removing the Filibuster (which would only require a bare 51 vote majority) and passing the legislation anyway. As suggested here by Harry Reid. Though not in relation to this particular legislation.

“We should give the Republicans a little bit of time, to see if they’re going to work with him,” he said. “But the time’s going to come when he’s going to have to move in and get rid of the filibuster.”

  • 2
    probably worth specifying a three fifths supermajority. Strictly speaking 51% is a supermajority, but not sufficient to defeat a filibuster
    – Tristan
    Commented Oct 28, 2020 at 14:15
  • 7
    51% is a majority, not a supermajority. As far as I can tell, supermajority means something stronger than simply a majority, typically when it exceeds some level required to approve some action (e.g. 2/3, 3/5, 3/4)
    – eques
    Commented Oct 28, 2020 at 14:34
  • @eques I think the point is that 51% is more than the smallest possible majority (e.g. 50 out of 99 is less than 51%) so 51% is strictly speaking a supermajority. In theory a legislature could demand a supermajority of 51% instead of the normal majority of more than 50%, though it would be pretty silly. So the word supermajority is pretty meaningless unless you clarify the percentage required. Commented Oct 29, 2020 at 11:23
  • @FrederikVds I think someone has edited the supermajority term out of the answer for me. But Wikipedia defines it as requirement for a level of support greater than 1/2. In the Senate context I was thinking of that would be 60 votes (3/5th assuming no vacancies) cloture rules, but obviously in other contexts it may vary
    – Jontia
    Commented Oct 29, 2020 at 11:40
  • @FrederikVds In the particular case of the Senate, 51% is the actually the smallest majority (50/100 is not a majority) so it's hardly "super". In the broader use of the term, 51% would be extremely unlikely to ever be a "threshold" amount for a supermajority since unless a body has more than 200 people for there to be a difference between simple majority and a 51% "supermajority".
    – eques
    Commented Oct 29, 2020 at 13:56

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