Expanding The Supreme Court Is Fast Becoming A Litmus Test For 2028 Democrats
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The 2028 presidential race is still months away from getting started, but one thing is already clear for the Democratic Party: reforming, or even expanding, the Supreme Court will be a litmus test for candidates running for the White House.
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Over the past decade, the Supreme Court and its conservative supermajority has emerged as a villain on par with President Donald Trump for Democrats. In a regular 6-3 split, the court has overturned the reproductive rights guaranteed in Roe v. Wade , blocked climate change regulations , effectively invalidated the Voting Rights Act , and not only made Trump's second-term possible but turbocharged it by declaring that presidents are, in most cases, above the law.
Big-name potential candidates, including 2024 nominee Kamala Harris , former Transportation Secretary Pete Buttigieg and Rep. Alexandria Ocasio-Cortez (N.Y.) , have already come out in favor of adding at least four justices to the court. And on Wednesday, all but one House Democrat, Rep. Don Davis (N.C.), voted against a GOP-led constitutional amendment that would permanently fix the number of justices at nine.
"It shows the consensus now to expand the court," Rep. Ro Khanna (D-Calif.), a potential presidential candidate and supporter of court expansion, said about the House vote.
The party unity in the House came days after Rep. Jim Clyburn (D-S.C.), one of the party's elite power brokers, endorsed expanding the Supreme Court by adding four justices.
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"I think we are in a position now that calls for some significant actions taken by the Congress and we ought to expand, and 13 is a pretty good number," Clyburn said Sunday on "Meet the Press." "A baker's dozen, it would be a good number to have on the court."
These developments show the issue is firmly at the heart of party discussions about how to govern if Democrats win both the presidency and control of Congress in 2028 — and hint at how fierce this fight could get.
"We've come a long way from when Supreme Court expansion was first proposed six to seven years ago," said Josh Orton, president of Demand Justice, the leading progressive group pushing for expanding the court. "The challenge now is that we build enough urgency to address these problems as quickly as possible under the next administration."
That urgency has been building. It began when Senate Republicans, under the guidance of Sen. Mitch McConnell (Ky.), blocked President Barack Obama from appointing Merrick Garland as a replacement for Justice Antonin Scalia after his death in 2016. It continued after Trump nominated and Republicans confirmed Justices Neil Gorsuch and Brett Kavanaugh in 2017 and 2018, respectively. Justice Ruth Bader Ginsburg's death in 2020 and replacement by the conservative Justice Amy Coney Barrett just six weeks later, cementing the court into a 6-3 conservative split, was the kick in the teeth.
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This was an earthquake in party politics. It meant that a Democratic-appointed majority on the court, which the country hasn't seen since 1969, was off the table for at least another generation despite Democrats regularly winning the White House. In 2019, former Attorney General Eric Holder became the first major figure to float expanding the court.
"Given the Merrick Garland situation, the question of legitimacy is one that I think we should talk about," Holder said in speeches at Columbia University and Yale Law School. "We should be talking even about expanding the number of people who serve on the Supreme Court, if there is a Democratic president and a Congress that would do that."
Some 2020 Democratic presidential candidates entertained the idea, with Buttigieg outright endorsing a version of it. But the eventual nominee and president, Joe Biden, was opposed. Biden appointed a presidential commission to study the idea, but all radical reforms like expanding the court were shunted.
That wasn't the end of it, though. Demand Justice endorsed expanding the court after Barrett's nomination, and it was joined by members of Congress. "If Republicans fill the seat, Democrats should abolish the filibuster and expand the Supreme Court," Sen. Ed Markey (D-Mass.) said before Barrett's confirmation.
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In 2021, Markey and Reps. Jerrold Nadler (D-N.Y.) and Hank Johnson (D-Ga.) introduced legislation to add four justices to the Supreme Court.
While the push for court expansion began in response to Republicans' blockade of Garland and accelerated following the creation of a conservative supermajority, it is that supermajority's actions since that have turned it into a Democratic cause célèbre.
"The Roberts Court's decisions and actions have been so egregious that has made folks like Clyburn feel like it is not so bold to say we need to expand the court," said Stasha Rhodes, president of United for Democracy, a coalition of more than 140 progressive groups for court reform.
In 2022, the conservative supermajority overturned Roe v. Wade in the Dobbs v. Jackson Women's Health Organization decision. Planned Parenthood, which had long celebrated the courts for granting reproductive rights, came out in support of expanding the court soon after.
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That same year, the conservatives tied the hands of the Environmental Protection Agency to fight climate change by regulating carbon emissions from power plants in West Virginia v. EPA. In 2024, conservative justices let Trump avoid criminal liability for fomenting a coup in an attempt to steal the 2020 election and put presidents above the law with its decision in Trump v. U.S. This enabled Trump to run and win the presidency.
Once Trump was back in office, the court's egregious actions escalated. The justices greenlit many of Trump's policies from stripping legal immigrants of their status to racially profiling immigrants to allowing Trump to raze the East Wing of the White House and build a ballroom on the shadow docket without argument and often with little explanation or even authors of their rulings.
But perhaps the biggest bomb the conservative court would drop came in April 2026, when it invalidated what was left of the landmark Voting Rights Act in Louisiana v. Callais. The 6-3 decision found it unconstitutional to allow the use of race in legislative district drawing and threatened dozens of Black and Latino congressional seats — all held by Democrats.
Southern Republicans, nearly all white, moved quickly to eliminate Black majority or plurality districts held by Democrats in Alabama, Louisiana and Tennessee. Republicans in Georgia , Mississippi and South Carolina threatened to do the same in the coming years. In total, such actions could threaten 19 Black seats — all held by Democrats, according to a study by Fair Fight Action and Black Voters Matter.
The destruction of the "crown jewel" of the civil rights movement led its defenders to call for changes to the court. The Callais decision stripped the court of "any remnant or modicum of credibility," Janai Nelson, president of the NAACP's Legal Defense Fund, said after the decision.
"We will vigorously pursue court reform until the highest court in the land, the Supreme Court, operates with the highest level of integrity and accountability and as an objective arbiter of the law," Nelson said in a statement in August.
Following the Callais decision, the Congressional Black Caucus declared that the court had been "compromised" and vowed to "make it our mission to aggressively advance Supreme Court reform."
Like the reproductive rights community, the Black community had long venerated the court for its role in advancing civil rights in the 20th century. The pivot to court reform marks a significant shift.
"Many of the people in our community have looked to the court as an unbiased party that could protect fundamental rights and freedoms," Rhodes said. "And many of the rights and freedoms have been helped and protected by the Supreme Court. So, at this moment, we realize the Roberts Court is no longer maintaining that same standard."
Where Callais threatened Black civil rights and political power, it also threatened the Democratic Party itself. With Black people constituting a significant party constituency , seats created to elect Black representatives under the Voting Rights Act are an important part of any Democratic House majority. Their potential elimination is then an existential crisis for the party itself.
"If we leave the gerrymandering gun on the table, we're staring down the 2030 census and Republicans are going to continue to try and rig congressional districts to make winning elections fairly more and more impossible," Orton said. "To me, expansion is really the only device that works on a timeline that puts out the fire."
But not everyone is totally on board with taking such a big step. The expansion bills introduced in Congress topped out at 65 sponsors in the House and three senators. Other options, such as ethics reform and term limits, have attracted greater attention in Congress and from some other groups involved in the coalition for court reform.
"We've been focused on building support for term limits for the justices, which has strong cross-partisan support," said Stephen Spaulding, managing director of the judiciary program at the Brennan Center for Justice, a progressive nonprofit.
Sen. Sheldon Whitehouse's (D-R.I.) term limit bill, which was crafted with the help of the Brennan Center, has 10 sponsors, including Sens. Patty Murray (D-Wash.), Brian Schatz (D-Hawaii) and Cory Booker (D-N.J.), who all hold party leadership roles.
While many backers of court reform state that court expansion is an important part of the conversation, they have not openly endorsed it. Notably, neither the NAACP Legal Defense Fund statement nor the CBC statement endorsed court expansion. Instead, the CBC specifically called for term limits for justices.
There are a host of concerns that court expansion is too radical, not popular, and could lead to a ***-for-tat escalation where Republicans respond by further expanding or shrinking the court when they regain power, thus further politicizing the court. While popular support is important to court expansion backers, they have a different view about further politicizing the court.
"The critics of court packing argue that it will lead to the politicization and weakening of SCOTUS because the GOP, once in power, will themselves try to pack the Court to even the playing field. Yeah … that's the whole point," Beau Baumann, constitutional law professor at the University of Utah, wrote on his Substack.
Not only would court expansion reduce the Supreme Court's power by turning it into a political football, they argue, it would also correct the court's current trajectory right now.
"If, somewhere down the line, Republicans try to expand or contract the court, I'm willing to have that fight when it happens," Orton said. "But if expansion is able to succeed as a major corrective for this corrupt Roberts majority and we enjoy 20 years of a Supreme Court that is more ideologically aligned with the freedoms and the rights and a more fair distribution of power in our democracy, that, to me, is a historic success."
As the pre-primary jockeying continues, whoever becomes the party standard-bearer will be the one who sets the agenda for Democrats. And if they embrace court expansion, the rest of the party may need to follow their lead.
Arthur Delaney contributed reporting.
