The Past Four Years at the Supreme Court Did Not Need to Be This Way
On Oct. 26, 2020, the Senate confirmed Amy Coney Barrett to the US Supreme Court. Eight days later, voters rejected the president who nominated her by some 7 million votes, but the election results could not undo what President Donald Trump and Senate Majority Leader Mitch McConnell had already done. When Joe Biden took office in January 2021, the six members of the court's newly minted conservative supermajority were the most powerful Republican politicians in the country, primed to spend four years standing in the way of anything and everything Democrats might have aspired to accomplish.
Barrett and company wasted little time getting to work. They functionally overturned Roe v. Wade on the shadow docket in December 2021, and finished the job six months later in Dobbs v. Jackson Women's Health Organization . They outlawed affirmative action, and torpedoed Biden's student debt relief plan, and reserved for themselves the power to second-guess federal regulations they don't like. They transformed the First Amendment into a guarantee of Christian supremacy, and rewrote the Second Amendment to put more guns in more hands in a nation where people already can't stop killing each other. And in 2024, they announced a sweeping theory of executive immunity in order to insulate their party's candidate from criminal prosecution, clearing the way for him to run for president again and win.
Late last month, the court wrapped its 2024–25 term by handing Trump yet another jurisprudential gift: a 6–3 decision that limits judges' ability to temporarily block policies from taking effect while legal challenges wind their way through the court system. The result in Trump v. CASA , which rolled back a trio of injunctions that had paused Trump's executive order purporting to revoke the 14th Amendment's unambiguous promise of birthright citizenship, transformed a constitutional right into a privilege contingent on where children of nonpermanent residents happen to be born, and when.
Presidents of both parties have long complained about the proliferation of these so-called “universal” injunctions. Curiously, this court decided to intervene only when Donald Trump and Stephen Miller asserted the legal authority to render babies stateless.
Given how frequently the court let these sorts of injunctions stymie Biden's agenda, it's worth recalling now a simple fact that has been lost in the disaster that was the end of this Supreme Court term: The past four years did not have to go this poorly. In 2021, Democrats held the White House and majorities in both chambers of Congress. (Their Senate majority—50–50, plus Vice President Kamala Harris' tiebreaking vote—was as narrow as majorities get, but a majority nonetheless.) This unified Democratic government could have used its fleeting power to add seats to the Supreme Court, thus restoring some semblance of balance to what everyone knew was the most conservative court in living memory. They did not do so, thanks to a time-honored Washington combination of obstinance, reticence, and cowardice.
As the court's latest round of decisions shows, Democrats' failure to act was a catastrophic mistake. If they are lucky enough to get another chance, they cannot make it again.
The circumstances of Barrett's confirmation—the death of Justice Ruth Bader Ginsburg, and the breakneck pace of Trump and McConnell's efforts to replace her before the election—generated a real burst of interest in court expansion, particularly given the hypocrisy of this effort in the wake of McConnell's nearly yearlong blockade of Merrick Garland's nomination to fill the Supreme Court seat of Justice Antonin Scalia during the final months of Barack Obama's presidency. As legislators considered Barrett's nomination, one poll showed that a slim majority of Americans supported adding seats to the court. On the campaign trail, Biden said he was “not a fan” of expansion, but promised to take a hard look at reforming an institution that was, in his words, “getting out of whack.”
Biden ostensibly made good on this commitment in April 2021, when he agreed a blue-ribbon commission to analyze the “principal arguments … for and against Supreme Court reform.” But the commission conspicuously included zero prominent supporters of expansion, and felt like a body carefully assembled to draw a conclusion likely to reflect the president's existing preferences. Sure enough, in its report , the commission noted the existence of “considerable, bipartisan support” for term limits for the justices, but cited concerns that expansion could “undermine or destroy the Supreme Court's legitimacy.”
For the most part, Democrats followed the Biden commission's lead. A Senate bill to add four seats to the court picked up a total of three (3) Democratic supporters. Biden maintained his opposition, as did the Senate Democratic Caucus' most obnoxious future lobbyists. After Republicans won the House in the 2022 midterms, Democrats had little to say about structural court reform until July 2024, when Biden announced his support for term limits. This probably would have felt more meaningful had he not dropped his bid for reelection eight days earlier.
The point here is not to helicopter-dunk on razor-thin Democratic majorities from two Congresses ago for failing to enact what was, in light of their personnel at the time, admittedly a long-shot reform proposal. The point is that such a proposal can't be a long shot in the future. Democrats who are dissatisfied with the past four years of the Supreme Court's handiwork need to learn from their mistakes—to start building popular support for court reform now, so that they can act decisively if and when they are next in power. Convening another presidential commission to reexamine the pros and cons is not going to cut it.
Many Democrats couch their opposition to expansion as a matter of prudent governance. “I'm skeptical of it because I don't know where it stops,” said Maine Sen. Angus King, an independent who caucuses with the Democrats, in April 2021. Kicking off a never-ending series of tit-for-tat additions, he continued, could yield a “100-person Supreme Court that changes every four years.” The Biden commission similarly warned that retaliatory expansion cycles could eventually cause the public to view the court as a “political football,” and “a pawn in a continuing partisan game.” (Imagine that.)
In my view, speculative fears have never constituted a persuasive argument for, say, allowing Sam Alito to put Moms for Liberty chapters in charge of public school curriculum. But in 2025, this concern is as quaint as it is unpersuasive. Polling shows that most Americans do not perceive the court as “politically neutral,” and believe its decisions are motivated “mainly by politics.” By expanding the court, Democrats would simply acknowledge a reality that voters already understand: Interpreting the law is inherently political, and so long as Democrats have fewer justices in the fight, they are going to keep losing decisively.
Skittish Democrats also need to weigh the risks of taking action against the hard realities of their decision to stand pat. If the party had expanded the court in 2021, Roe v. Wade would still be good law. Lawmakers could do more to protect their constituents from gun violence. Affirmative action would be legal, voting rights would be stronger, millions of borrowers would carry less debt, and Trump would not be magically immune from prosecution for fomenting a deadly riot at the Capitol. Even if Trump and his Republican House and Senate majorities were now racing to pass an expansion bill of their own, there are people who are dead who would still be alive today if Alito's triumphant majority opinion in Dobbs were instead a furious dissent.
It is true that court expansion does not poll as well as it did five years ago. But being a politician occasionally requires actual leadership, which means working to persuade voters of the merits of a position, rather than reflexively hewing to public opinion at any given moment. In the meantime, the court has provided plenty of fodder for Democrats interested in reopening the debate: Before Trump took office, the court's approval rating hovered in the 40s, and often dipped when the justices made headlines for one ignominious reason or another. After Dobbs , for example, the court's approval rating plunged to 38 percent in one poll, down from 66 percent two years earlier. If recent history is any indication, Democrats do not have to do much to make the court a villain, because the court is very adept at doing that all by itself.
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