Utah’s Republican governor, Spencer Cox, signed legislation over the weekend that will add two seats to his state’s supreme court — seats that Cox plans to fill shortly. The law is widely viewed as an effort to move Utah’s highest court to the right after it handed down several decisions that Republicans disliked.
In September, the pre-packed Utah Supreme Court sided with plaintiffs challenging Utah’s GOP-friendly congressional maps. According to the Salt Lake Tribune, in recent years, Utah courts also “blocked Utah’s ban on most abortions, temporarily stopped a law banning transgender girls from playing high school sports, and found the state’s school voucher program unconstitutional.”
SCOTUS, Explained
Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.
“Court-packing,” or adding seats to a court in order to change its ideological or partisan makeup, is often spoken of as if it were the political equivalent of detonating a nuclear weapon. In 1937, shortly after winning reelection in a landslide, President Franklin D. Roosevelt proposed adding six seats to a US Supreme Court that frequently sabotaged his New Deal policies. But, even at the height of his power, Roosevelt struggled to build support for his plan. Some historians blame his court-packing proposal for shattering the New Deal coalition in Congress.
Since then, national leaders have typically spoken of court-packing with trepidation. In 2020, for example, as Republicans were consolidating their 6-3 supermajority on the US Supreme Court, then-presidential candidate Joe Biden warned that he was “not a fan of court-packing” as a solution to Republican partisanship on the high court.
But, at the state level, Republicans now engage in court-packing often enough that it has become just a normal part of partisan judicial politics. In 2016, Republicans in Georgia and Arizona did the same thing Utah just did, adding seats to their state supreme courts in an apparent effort to move those courts to the right. So that’s three packed supreme courts in a single decade.
This is oddly short-sighted behavior by the Republican Party. A Republican US Supreme Court is the GOP’s most durable power center, and Republicans have wielded this power center aggressively. The Court’s six Republicans held that President Donald Trump may use the powers of the presidency to commit crimes. And they spent the first year of Trump’s second term neutering lower courts that tried to constrain Trump’s ability to violate the Constitution and to remake the federal government. Though some of the Court’s Republicans occasionally break with Trump, they typically do so on issues that split the Republican Party.
By contrast, when Biden was in office, the same six Republicans frequently struck down his policies, even, in some cases, when those policies were unambiguously authorized by federal law.
Democrats who want to push back against these decisions are in a bind, even when they control both Congress and the White House. The Constitution does not permit many relatively modest Supreme Court reforms that Democrats have proposed in the past, such as term limits for the sitting justices. But it does permit Congress to add seats to the Court whenever it wants; the number of justices has varied from as few as five, to as many as 10 over the Court’s history.
So the longstanding norms against court-packing, at least at the federal level, prevent Democrats from using their most potent weapon against an increasingly partisan Supreme Court. If those norms break down — and they appear to have already broken down completely in Utah, Georgia, and Arizona — Democrats would gain a powerful tool if they want to yank the federal judiciary away from the GOP.
The leading moderate proposals to reform the Supreme Court are unlikely to survive constitutional review
The Constitution seeks to protect federal judges from political interference. Among other things, it provides that federal judges and justices “shall hold their offices during good behaviour,” and it also provides that their “compensation … shall not be diminished during their continuance in office.” The first provision is widely understood to give federal judges life tenure, while the later prevents Congress from undermining this life tenure by stripping judges of their salaries.
One weird quirk of the Constitution, however, is that it gives Congress nearly unlimited authority to decide how many justices sit on the Supreme Court. Outside of the impeachment process, which requires two-thirds of senators to agree to remove a justice, Congress cannot kick a justice out of office. But it can dilute that justice’s vote by adding an unlimited number of new justices.
As a practical matter, this constitutional quirk means that several relatively moderate proposals to reform the Supreme Court are unconstitutional, but court-packing, the nuclear bomb of Supreme Court reforms, is not.
In his final year in office, for example, Biden proposed three reforms targeting the Court: term limits for justices, a binding ethics code for the Supreme Court, and a constitutional amendment overturning the Court’s decision allowing Trump to commit crimes. Because the Court’s Trump immunity decision was, at least nominally, rooted in the Constitution, Biden recognized that fixing that error without changing the Court’s personnel would require a constitutional amendment.
Biden’s term limits proposal, meanwhile, was quite popular. Around the time he proposed it, a poll found that 68 percent of Americans endorse term limits for members of the Supreme Court.
But imposing term limits on the current justices would almost certainly require a constitutional amendment. Again, the Constitution provides that justices “shall hold their office during good behavior,” and not for a fixed term. Though there are some academic arguments that this provision does not preclude term limits, those arguments are largely irrelevant, because the power to decide whether the Constitution permits term limits rests with the Supreme Court. And the justices are unlikely to agree to a constitutionally dubious proposal to limit their own power.
Similarly, it is unclear whether Biden’s proposed ethics code for the justices would have any real teeth. While a congressionally imposed ethics code is constitutional — the Constitution provides that the justices may only exercise their appellate jurisdiction “under such regulations as the Congress shall make” — the justices could simply ignore the code or even invent a spurious reason to declare it unconstitutional.
Indeed, at least one justice, Justice Samuel Alito, has already indicated that he would do so. In a 2023 interview, Alito claimed, falsely, that “no provision in the Constitution gives [Congress] the authority to regulate the Supreme Court — period.”
A law adding seats to the Supreme Court, by contrast, is not vulnerable to the Court’s current membership. It is well-established that Congress may determine how many justices sit on the Supreme Court, and Congress has used this power multiple times in the past. And, if justices like Alito attempted to strike down a court-packing law, they would likely be outvoted by their new colleagues.
This means that the primary constraint on Congress’s court-packing power is political — not constitutional. Congress has historically used this power sparingly, both out of a desire not to politicize the judiciary, and because of the strong norms against doing so — norms that were strong enough that they withstood even Roosevelt’s attempt to pack the Court.
But the Supreme Court is already politicized. And now, Republicans have torn down the norms against court-packing in multiple states. If Republicans in Arizona, Georgia, and Utah can do it, why can’t Democrats do it elsewhere — including at the highest Court of them all? The state-level GOP power grabs mean that Republicans will have no principled basis to complain if, in three or four years, a new president and Congress decide to de-Trumpify the Supreme Court.
