Democrats Are Courting Disaster, Again

“Reform” has become the Left’s preferred remedy for losing cases at the nation’s highest court.

Courtesy Sarah Penney/Unsplash

This piece first appeared on our main website, city-journal.org.

Seven years ago, I warned that Democrats were “courting disaster” by turning their frustration with the Supreme Court into a campaign to remake it. Their 2020 presidential field was talking about adding justices, limiting their terms, and otherwise changing the rules because Donald Trump had gotten to replace Antonin Scalia and Anthony Kennedy. The Democrats’ flirtation with blowing up the high court became a full-blown mania after Trump got a third pick, naming Amy Coney Barrett after Ruth Bader Ginsburg’s death in 2020.

Six years later, House Democratic leader Hakeem Jeffries says “dramatic Supreme Court reform” is necessary and that Democrats should not “foreclose” any option. Former Vice President Kamala Harris wants to revisit expanding the Court. Former Transportation Secretary Pete Buttigieg, who pitched a 15-member Court during his presidential campaign, now favors 13 seats plus term limits, calling the current tribunal a “rogue Supreme Court.” Senator Sheldon Whitehouse and ten Democratic colleagues have introduced legislation that would effectively impose 18-year terms, with a new justice every two years. And Alexandria Ocasio-Cortez has already introduced articles of impeachment against Justices Clarence Thomas and Samuel Alito.

Harris and Buttigieg have even invoked the federal judiciary’s structure to explain the magic number 13, referring to 13 “district” courts. But there are in fact 94 federal judicial districts and 13 courts of appeals (one of which, the Federal Circuit, isn’t geographic but rather subject-matter-specific). One would hope that anyone so dedicated to redesigning Article III would first study the floor plan.

Senate Democratic leader Chuck Schumer, meantime, calls it the “MAGA Supreme Court” when he dislikes its decisions—after famously saying in 2020 that “everything is on the table” as Democrats debated court-packing.

The through-line is obvious: for the Left, it’s only a constitutional crisis when the Court rules against left-wing interests. Overturning Roe v. Wade, ending racial preferences in college admissions, invalidating campaign-finance regulations, curbing bureaucratic power, eliminating racial spoils in voting rights—all adverse decisions become evidence that the institution itself is broken. Decisions that infuriate Trump supporters, meantime, don’t temper so much as pause the Left’s calls for structural repair.

Jeffries provided a laboratory-quality demonstration this year. In February, after the Court invalidated Trump’s tariffs, he said the justices had “absolutely” done the right thing and brushed aside a question about court-packing. By July, following the Court’s Voting Rights Act ruling earlier in the year, the “right-wing Supreme Court extremist majority” was “totally out of control” and needed to be “reigned in.” For Jeffries, institutional legitimacy is highly correlated with the latest box score.

This is what political scientists mean when they say “legitimacy is for losers.” People who like a ruling rarely question the institution that produced it. The current “reform” movement dresses that familiar sour-grapes phenomenon in the language of democracy, ethics, and good government.

Court-packing is the most dangerous of the Left’s proposals. The Constitution doesn’t specify nine justices, but that’s been the stable number since 1869. Franklin D. Roosevelt’s notorious 1937 plan, hatched after a series of New Deal defeats, would have let him expand the Court to 15. Even enormous Democratic congressional majorities balked, and the gambit helped produce an electoral backlash.

The practical objection remains devastating: What happens next? If Democrats add four justices to create a 7–6 left-wing majority, why wouldn’t the next Republican trifecta add another four? Or six? You don’t restore norms by transforming institutions to produce your preferred results.

Even Bernie Sanders understands this. Opposing court-packing in the 2020 primaries, he warned that Republicans would simply add their own justices the next time they gained power. Sanders now calls the Court “out of control” and supports ethics reforms, but he still hasn’t joined Harris and others in demanding an expanded bench.

Term limits are somewhat different. I’ve long thought that staggered 18-year terms are attractive in theory: predictable vacancies would lower the actuarial stakes of each nomination and guarantee each presidential term two appointments. But there are transition complications, not to mention that genuine term limits would require a constitutional amendment. And statutory schemes that nominally preserve life tenure while relegating “senior” justices to a sliver of the docket fail the constitutional smell test.

In any event, reform designed to neutralize today’s majority won’t depoliticize anything.

Impeachment is more alarming still. Samuel Chase remains the only Supreme Court justice ever impeached, and the Senate acquitted him in 1805. Since then, the norm has been that impeachment addresses actual legal or ethical misconduct, not objectionable jurisprudence or spurious charges that gifts or flag-flying cause Republican-appointed justices to be originalist. Equating “high crimes and misdemeanors” with “breathless innuendo and conservative opinions” would destroy judicial independence.

Ultimately, all this reform talk is rearranging deck chairs on the Titanic: the fundamental problem is the politicization not of the Court or its processes but of its product. Washington makes too many decisions for the whole country, and Congress delegates too much power to executive agencies, leaving it to the courts to resolve enormous social and regulatory disputes. We’re also seeing divergent interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War.

The Supreme Court’s legitimacy comes from deciding cases according to law, including when half the country hates the result. If Democrats want a Court with a different jurisprudential direction, there’s an established method: win elections and appoint judges.

Losing cases isn’t a constitutional crisis.

Ilya Shapiro is director of constitutional studies at the Manhattan Institute, contributing editor of City Journal, and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. He also writes the Shapiro’s Gavel newsletter.