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There would probably be more yawns than outrage if Biden expanded the Supreme Court

In a partisan era, public opinion on court size shifts with the political context

The Supreme Court Building in November 2019. (Susan Walsh/AP)

Last week, President Biden created a commission to study possible Supreme Court reforms — including expanding the number of justices. Discussion over such a possibility is remarkable, given the court’s stability over the past century.

Some progressives want Biden to expand the court and appoint several new members to balance the conservative 6-3 majority on the court. They are outraged at what they perceive as Republicans illegitimately filling two seats: first, refusing to hold hearings on President Barack Obama’s nominee Merrick Garland to replace Justice Antonin Scalia, and second, rushing to replace Ruth Bader Ginsburg with Donald Trump’s nominee, Amy Coney Barrett.

Democrats fear the court’s conservative majority will threaten key Democratic Party goals, such as delivering universal health-care coverage and protecting women’s reproductive rights. With Democrats in charge of the White House, the Senate and the House of Representatives at least until January 2022, more have been discussing the idea of expanding the court. Just last week, some Democrats introduced a bill to add more Supreme Court seats.

Our research, published at the Journal of Democracy, finds a majority of Americans would not oppose a court expansion scheme like the one president Franklin D. Roosevelt proposed but failed to enact. Indeed, a noteworthy minority would actively support it.

How we did our research

Last July, before Ginsburg’s death, we conducted a survey experiment on 4,412 people who were a representative sample of the U.S. population, using the online survey firm Lucid; we have run the same experiment in Mexico, Argentina and Brazil. We asked U.S. respondents to read a fictitious but plausible scenario in which the Supreme Court was consistently striking down legislation passed by the party in charge of Congress and signed by the president, randomizing the ideology of both the president and the majority in the court. In response, the party in charge increased the size of the court, installing a new set of ideologically friendly judges to ensure it had a majority in future rulings. When reading a scenario in which a conservative court repeatedly struck down a liberal administration’s legislation, we found 23 percent of Americans supported expanding the court.

This lines up with results from traditional opinion polling, despite the fact that our experimental setup differs from a conventional public opinion survey. In the flurry of polling on the topic that occurred around the time of Ginsburg’s death, surveys indicated about one-quarter to one-third of Americans supported expanding the court.

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Conservatives were much more likely to support expanding the court, but that has flipped since the election

Liberals and conservatives’ support for adding justices differs. Depending on the experimental scenario they read, conservatives were two to three times as likely to support a court-packing scheme. This could have been because Trump was president and court-packing at the time would have benefited conservatives. Alternatively, it could mean we found American conservatives to be more supportive of transgressions against democratic norms.

While generally less supportive of court-packing than conservatives, self-identified liberals were roughly 30 percent more likely to support adding justices when they read about a liberal incumbent administration whose agenda was blocked by the courts than when they read about a conservative administration.

Indeed, baseline support among liberals seems to have grown since Ginsburg’s death and Joe Biden’s election. A Yahoo News/YouGov poll conducted during the Senate’s rush to confirm Amy Coney Barrett found 48 percent of Democrats supported adding justices while only 20 percent of Republicans did. A Reuters/Ipsos poll this week found 38 percent of a national representative sample would support expanding the size of the court by adding four more justices, with another 42 percent opposed and the rest unsure.

Apparently, American public opinion on the issue is malleable, with partisans willing to change their minds as the political backdrop changes. For instance, in trying to shape public opinion on the topic, Democrats have been pointing out the Constitution does not specify the number of Supreme Court justices. While the Court has had nine justices since 1869, it has had as few as six in 1789 and as many as 10 in 1863. Indeed, the court changed size seven times in its first 80 years. Knowing that history might make changes seem less radical.

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Americans would probably not punish a president who packs the court

One of our strongest findings, however, is that few respondents wanted to punish an incumbent who reshapes the court for partisan ends. This finding is consisted with past research that shows many American voters support empowering popularly elected officials, even at the expense of checks and balances and other features of liberal democracy.

We find that 56 percent of respondents didn’t think adding justices is an impeachable offense. Even those who oppose it weren’t willing to do anything if it happened. While 78 percent of those who oppose expanding the court said they would talk to their friends about it, only 39 percent would probably donate to an organization that opposes it while only 38 percent would probably attend a demonstration to oppose it. A lot of Americans would sit on the sidelines.

More liberal voters are likely to drop their opposition to reform if the conservative Supreme Court begins striking down laws passed by Democrats. If that happened, Biden could frame this as a partisan attack on his agenda that prevents Democrats for governing. That would embolden Democrats who support reforming the court. Our research indicates many Americans would support this, or a milder reform such as instituting age limits for justices — or at would least wait until the next election to judge it at the ballot box.

Roosevelt famously tried to add justices to the Supreme Court during the Great Depression. A conservative court repeatedly struck down Roosevelt’s legislation to dig the country out of the Depression by expanding government intervention in the economy. At the time, critics on both the right and left pushed back against what they viewed as executive overreach that would damage the independence of the judiciary.

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The United States is more politically polarized today, and Americans have less trust in government institutions. The court’s structure and makeup probably will be an intense partisan battleground for some time.

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Michael Albertus (@mikealbertus) is associate professor of political science at the University of Chicago and the author of “Authoritarianism and the Elite Origins of Democracy” (Cambridge University Press, 2018).

Guy Grossman (@guygrossman) is professor of political science at the University of Pennsylvania and founder and co-director of Penn’s Development Research initiative (PDRI).