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Frequently Asked Questions About Supreme Court Expansion

FAQS

Supreme 13 advocates increasing the U.S. Supreme Court from nine justices to 13 to restore democratic balance, align the Court’s size with the modern system of 13 federal courts of appeals, and help rebuild public trust.

These FAQs explain the proposal, its constitutional and historical foundation, the case for and against expansion, alternative reforms, how expansion could occur, and the evidence regarding political and public support.

Last updated: October 10, 2026

The Proposal and Why 13

  • Supreme 13 advocates that the Democratic Party, if it wins control of the presidency and both houses of Congress in 2028, should expand the Supreme Court from nine justices to 13 in 2029 through federal legislation. The proposal is intended to restore democratic balance, align the Court’s size with the modern system of 13 federal courts of appeals, and help rebuild public trust.

    See How would Supreme Court expansion become law, and how would new justices be appointed?

  • The Supreme Court currently has a 6–3 conservative majority. Since 1970, through circumstance and political choice, no fully staffed Court has had a majority of justices appointed by Democratic presidents. In 2028, if Democrats win the presidency and both houses of Congress, Supreme 13 argues that structural reform of the Supreme Court through expansion should be considered an essential part of protecting a Democratic governing agenda. That is in part because expanding the Court by four seats in 2029 would likely change the current 6–3 conservative majority into a 7–6 progressive majority.

    Thirteen is not constitutionally required, but it provides an institutionally grounded endpoint for expansion. The federal judiciary has 13 courts of appeals: 12 regional courts and the U.S. Court of Appeals for the Federal Circuit. During much of the nineteenth century, Congress generally increased the number of Supreme Court seats as it created additional judicial circuits.1 Thirteen justices would therefore provide a clear connection to the modern appellate system and to historical practice.

    For more, read Choice, Circumstance, and the Case for Supreme Court Expansion. See also Has Congress changed the Court’s size before? on history and Would a 13-justice Court be too large or unwieldy? on manageability.

Constitutional and Historical Foundation

  • The Constitution does not require nine justices. Article III establishes “one supreme Court” but does not specify how many people serve on it. Congress has set the Court’s authorized membership by statute since 1789. Congress set the Court’s size at nine in 1869, and current law provides for one Chief Justice and eight Associate Justices.2

  • Yes, Congress has repeatedly changed the Supreme Court’s authorized membership through federal legislation.

    The First Congress created a six-member Supreme Court by federal statute in 1789. Congress then enacted changes in 1801, 1802, 1807, 1837, 1863, 1866, and 1869. Those laws set authorized sizes ranging from five to ten seats.3

    Since 1869, Congress has left the Court’s authorized membership at nine.

  • The Supreme Court has not squarely ruled on whether Congress may increase the Court’s size.

    Nonetheless, Congress’s authority to set and increase the Court’s size is grounded in Article III’s creation of “one supreme Court” without fixing its size, Congress’s authority under the Necessary and Proper Clause to structure the federal judiciary, and more than two centuries of congressional control over the Court’s statutory size.4 Most legal scholars therefore conclude that Congress may increase the number of seats on the Supreme Court through federal legislation.

    For a fuller analysis, read The Constitutionality of Expanding the Supreme Court.

The Case for Expansion

  • Supreme 13’s case is not based on disagreement with a single decision. It rests on the combined effects of life tenure, irregular vacancies, strategic retirement, Senate control over whether nominees receive consideration, and the sharply different treatment of election-year vacancies in 2016 and 2020. It also reflects major doctrinal changes in constitutional and administrative law, recurring ethics concerns, and low public confidence in the Court.

    Supreme 13 argues that these developments have created a structural problem that ordinary vacancy-by-vacancy turnover is unlikely to correct in a reasonable period, particularly when justices can time their retirements to increase the likelihood that a like-minded successor will be appointed. Expansion enacted after an explicit electoral debate over the issue in 2028 would alter the Court’s statutory size through the elected political branches, not direct judges how to decide cases.

  • Since 1970, every fully staffed Court has had a majority appointed by Republican presidents.5 Of the 19 justices appointed from 1970 through October 2026, 14 (74%) were appointed by Republican presidents and 5 (26%) by Democratic presidents. Over the same period, Republican presidents occupied the White House for approximately 58% of the time, compared with 42% for Democratic presidents.

    Life tenure, the timing of deaths and retirements, and Senate decisions about whether to consider nominees have therefore produced a long-term appointment pattern that does not closely track the parties’ respective periods of presidential control.

    Supreme 13 does not use “balance” to mean that either party is entitled to a particular share of Supreme Court seats. Rather, it refers to addressing the accumulated appointment imbalance that has developed over time. If Democrats campaign on Court expansion in 2028 and win control of the presidency and Congress, Supreme 13 argues that they should use legislation and the Article II appointment process to expand the Court.

  • Justice Antonin Scalia died on February 13, 2016. President Barack Obama nominated Merrick Garland on March 16, but the Republican-controlled Senate Judiciary Committee held no confirmation hearing, and the Senate held no confirmation vote. The nomination was returned at the end of the Congress. The seat remained open until Neil Gorsuch took his seat on April 10, 2017, for a period of 422 days after Scalia’s death. During the vacancy, the eight-member Court divided 4–4 in cases including United States v. Texas and Friedrichs v. California Teachers Association, leaving the lower-court judgments in place without a nationwide Supreme Court precedent.6

    Justice Ruth Bader Ginsburg died on September 18, 2020. The Republican-controlled Senate proceeded with President Donald Trump’s nominee, Amy Coney Barrett. The Senate confirmed Barrett on October 26, eight days before the presidential election.7

    Although the Senate had constitutional authority to withhold consent in 2016 and to provide it in 2020, the sharply different treatment of the two election-year vacancies had lasting consequences for the Court’s composition.

    For a detailed chronology, read How Republicans Escalated the Supreme Court Fight in 2016.

  • The Supreme Court interprets the Constitution and federal statutes, resolves conflicts among lower courts, and determines the lawful reach of federal and state power. Its decisions can affect voting and representative government; reproductive freedom, equality, immigration, and civil rights; labor and consumer protections; environmental regulation; gun laws; religious liberty; and presidential and administrative power.

    Recent decisions illustrate the breadth of that authority. Dobbs v. Jackson Women’s Health Organization overruled Roe v. Wade and Planned Parenthood v. Casey, holding that the Constitution does not confer a right to abortion. Students for Fair Admissions v. Harvard invalidated race-conscious admissions programs. Loper Bright Enterprises v. Raimondo overruled the Chevron framework for judicial review of agency interpretations. Trump v. United States recognized substantial criminal immunity for official presidential acts.8

    Although reasonable people may disagree about those rulings and about expansion, those cases illustrate why judicial philosophy and Court composition can matter greatly, particularly in closely divided or doctrine-changing cases.

  • No. An expansion statute would authorize seats, not decide cases. A president would nominate individuals, the Senate would decide whether to confirm them, and confirmed justices would exercise independent judicial judgment. Justices appointed by presidents of the same party sometimes disagree, change over time, or join unexpected coalitions.

    Expansion would also not automatically erase any precedent. The Court can, however, reconsider and overrule its prior decisions. In deciding whether to do so, the Court has considered factors such as the quality of a precedent’s reasoning, its consistency with related law, workability, and reliance interests. The formulation and weight of those factors vary by context.9

    For more on stare decisis and the reconsideration of precedent, read Is Stare Decisis Dead at the Supreme Court?

The Strongest Objections

  • The term “court-packing” is commonly used pejoratively to describe changing a court’s size in order to influence its future direction. Supreme 13 does not dispute that expansion would affect the Court’s future composition; it argues that the relevant question is whether such a change is lawful, democratically enacted, and justified on the merits.

    Supreme Court expansion enacted by Congress and signed into law by a Democratic president in 2029 would be a structural change to the Court made through federal legislation, which is the mechanism Congress has historically used to set and change the Court’s size. Changes in the size of high courts are not unprecedented: a 2025 study identified 157 changes in the size of state supreme courts from 1789 through 2023, including 120 increases and 37 decreases. More recently, Republican-controlled governments expanded the high courts in Arizona and Georgia in 2016 and Utah in 2026, creating new seats that Republican governors were able to fill. Arizona increased its court from five to seven justices, Georgia from seven to nine, and Utah from five to seven.10

  • Expansion might rebuild trust for some people and deepen distrust for others. Supreme 13 argues that, for a Democratic governing agenda, the risks of inaction are greater.

    Public confidence in the Court is already low amid inconsistent vacancy practices, recurring ethics controversies, perceptions of partisan advantage in appointments, and abrupt doctrinal change. A September 2026 Gallup poll found that just 46% of Americans had a great deal or fair amount of trust in the federal judicial branch, the lowest level in Gallup’s trend dating to 1972. Supreme Court job approval stood at 34%, near its record low.11

    Congress has long exercised authority to set and change the Court’s size by statute. A 13-member Court created through validly enacted federal legislation would be no less legally constituted than the current nine-member Court. And if expansion followed a national election in which the issue was openly debated, it would rest on a clear democratic basis as well.

    As for its “independence,” life tenure gives justices a substantial measure of institutional independence. Justices nevertheless bring differing judicial philosophies and ideological perspectives to their work, which can affect how they approach constitutional and statutory questions. Expansion would change the Court’s membership, but it would not eliminate life tenure, judicial review, or the justices’ independence in deciding cases. Supreme 13 argues that acknowledging this reality is compatible with judicial independence.

  • Yes. A future Congress and president could change the Court’s size again. Nothing in the legislation expanding the Court to 13 seats could prevent a later Congress from changing its size. But if Democrats expand the Court in 2029, the earliest ordinary opportunity for Republicans to do so with unified control of the presidency and Congress would be 2033.

    Because the risk of escalation is real, Supreme 13 argues that, after a Democratic Congress expands the Court to 13 seats, the parties should negotiate changes to the Court’s appointment structure and term limits through a constitutional amendment that could provide a more regular system of nominations and changes in active membership.

    Supreme 13 argues that a hypothetical 7–6 progressive majority might also change the political incentives for such negotiations. Republicans would no longer be defending an existing 6–3 conservative majority that they might otherwise expect to endure for years, potentially creating more room for agreement on longer-term structural reforms.

  • Yes—legislatively. But the episode remains important. In 1937, President Franklin D. Roosevelt proposed allowing an additional justice for each sitting justice over age 70 years and six months who did not retire, up to six additional seats. The Supreme Court could therefore have grown from nine to as many as 15. The proposal failed in Congress amid concerns about presidential power, judicial independence, and its relationship to Supreme Court decisions invalidating New Deal measures.12

    The episode nevertheless remains relevant because it demonstrates the potential for the elected branches to place political pressure on the Supreme Court. While Roosevelt’s proposal was being debated, the Court announced West Coast Hotel Co. v. Parrish, in which Justice Owen Roberts joined a 5–4 majority upholding a state minimum-wage law.

    Roberts’ vote helped inspire the phrase “the switch in time that saved nine.” Although historians dispute whether Roberts’ vote represented a politically motivated “switch,” and they dispute what caused the Court’s broader doctrinal shift,12 the lesson remains that the elected branches have lawful tools to check a Supreme Court they believe has overreached.

  • An increase from nine to 13 seats would not require changing the Court’s basic jurisdiction or core procedures. The justices could continue to hear and decide cases together, and the Court would retain control over its docket and internal procedures. A larger Court could also distribute circuit, emergency, and institutional responsibilities among more justices.13

    There is no inherent reason that a 13-member Court could not perform the same core functions as a nine-member Court. The principal change would be the number of justices participating in the Court’s deliberations and decisions, not the basic way the Court operates.

  • Expansion itself would be pursued through elections and the ordinary legislative process. It would require voters to elect a president and members of Congress prepared to enact it, followed by presidential nominations and Senate confirmations.

    The disagreement is whether electoral victories should affect only future vacancies or can also support statutory changes to the Court’s structure. With life tenure, vacancies depend on death and retirement; strategic retirement can shape timing; and the Senate can decline to consider a nominee. Those features can create long lags between repeated election results and appointment opportunities. Supreme 13 therefore argues that waiting for unpredictable vacancies is not an adequate remedy for a Court whose fully staffed membership has had a Republican-appointed majority since 1970.

    For more on how strategic retirement can shape Supreme Court succession, read Supreme Court Justices Shouldn’t Choose Their Successors.

Expansion and Other Reforms

  • Term limits have a strong institutional rationale. A system of regular appointments could reduce the effects of accidental vacancy timing and strategic retirement, give presidents a more predictable appointment cadence, and lower the stakes of any single nomination. Supreme 13 regards those goals as valuable.

    But term limits and expansion address different problems on different timelines. Term limits principally regularize appointment opportunities and turnover over time. Expansion, by contrast, changes the Court’s authorized membership and, once new seats are filled, changes its composition directly. 

    The legal pathway to term limits is also disputed. S. 5076, a bill introduced in July 2026, would generally assign ordinary appellate participation to the nine most recently appointed justices, provide for appointments every two years, and make those provisions effective beginning with the first full presidential term after enactment. But legal scholars disagree over whether Congress may impose such a system by statute or whether Article III requires a constitutional amendment. The bill itself does not resolve that constitutional question.14

    Supreme 13 supports term limits, but as a complement to—not as a substitute for—expansion.

    For more, read Supreme Court Term Limits Cannot Substitute for Court Expansion.

  • Different reforms address different institutional problems:

    • Ethics, disclosure, recusal, and enforcement rules address conduct and conflicts of interest.
    • Transparency measures can improve financial disclosure, explanations of recusals, public access, and information about emergency orders.
    • Additional lower-court judgeships can reduce workload and improve access to justice without changing the Supreme Court’s membership.
    • Procedural and jurisdictional reforms can affect which cases reach the Court and how they are handled, although some proposals raise separate constitutional questions.
    • Term limits or regular appointments address the timing and distribution of appointment opportunities.

    The Supreme Court adopted a Code of Conduct in November 2023. The code states ethical principles and includes commentary, but it did not create a new external enforcement body.15 Proposals for stronger enforcement therefore remain distinct from the existence of the code itself.

    Many of these reforms are worthwhile, but none directly changes the Court’s current authorized membership. Whether and how to combine them with expansion is a policy choice. Each should be evaluated according to its own objectives, legal basis, and implementation risks rather than treated as a substitute for Court expansion.

How Expansion Could Happen

  • First, Congress would pass a bill amending 28 U.S.C. § 1 to authorize one Chief Justice and 12 Associate Justices, and the President would sign it. 

    Second, the President would nominate individuals for the newly authorized seats under Article II. The Senate would consider each nomination and decide whether to provide advice and consent. If the Senate confirmed a nominee, the President would appoint that individual, who would take the required oaths before assuming office as a justice.16

    For more, read What It Will Take to Expand the Supreme Court in 2029.

  • Not necessarily, but under current Senate practice it could be a central obstacle to legislation. Final passage of a bill requires a majority of senators present and voting, assuming a quorum. Before the Senate can reach that vote, however, a filibuster can prolong debate. Under Senate Rule XXII, invoking cloture on ordinary legislation generally requires three-fifths of senators duly chosen and sworn—normally 60.17

    A pro-expansion majority with fewer than 60 votes would therefore need additional support to invoke cloture, an agreement allowing the bill to proceed without cloture, or a change in Senate rules or precedent, including a tailored exception. The precise route would depend on the Senate’s membership, leadership, and procedures at the time.

    But changing Senate procedure for Supreme Court nominations is not unprecedented. Since 2017, cloture on a Supreme Court nomination can be invoked by a simple majority, and confirmation is also by majority vote.17 Thus a rules decision affecting an expansion bill would not automatically determine how later nominees are considered.

  • In the 119th Congress, Representative Al Green introduced H.R. 8647, which would change the number of Associate Justices from eight to 12.18 Bills introduced in earlier Congresses, including the Judiciary Acts of 2021 and 2023, would have had a similar result.

    For the latest on past and pending legislation, visit Supreme 13’s legislation resources.

  • Supreme 13 uses 2029 as a campaign horizon because it is the earliest ordinary opportunity for Democrats to hold the presidency and both houses of Congress following the 2028 election. Supreme 13 argues that Republicans have little current incentive to increase the size of the Supreme Court because six of its nine members were appointed by Republican presidents and many of the Court’s major recent decisions have aligned with Republican policy priorities.

    Supreme 13 also argues that the risk of inaction by a Democratic administration in 2029 is that major elements of its agenda could be blocked or curtailed by the Court’s conservative majority, as occurred during the Biden administration with policies involving student-debt relief, workplace COVID protections, eviction protections, and air-pollution regulation.

Support and Public Opinion

  • Support for expansion includes elected officials, state Democratic parties, advocacy organizations, scholars, and members of the public. For current names and supporting documentation on elected officials, state parties, and organizations, see Supreme 13’s directories for U.S. senators, U.S. representatives, state Democratic parties, and organizations.19

  • Recent national polling has found substantial support for expanding the Supreme Court, including majority support in a September 2026 Marquette Law School national survey. That survey found that 53% of adults favored increasing the number of justices on the Court, while 47% opposed it. That compared with an even 50%–50% split in May 2026. The September survey also found majority support among independents, with 56% in favor, along with 68% of Democrats and 35% of Republicans.20

How to Help

If you support expanding the Supreme Court to 13 justices, you can:

  • Ask candidates and elected officials for a clear, on-the-record position.
  • Share sourced explanations of the proposal, its history, and its strongest objections.
  • Review Supreme 13’s endorsement directories and research resources.
  • Contact Supreme 13 to contribute research, documentation, organizing help, or other expertise.

Sources and Notes

All current-status sources and maintained Supreme 13 pages below were last checked October 1, 2026, unless otherwise stated.

  1. Administrative Office of the U.S. Courts, Court Role and Structure (describing 12 regional courts of appeals and the Federal Circuit); Federal Judicial Center, Supreme Court of the United States: Legislative History; Supreme Court of the United States, Circuit Assignments. ↩
  2. U.S. Const. art. III, § 1, Constitution of the United States (establishing “one supreme Court” without specifying its size); Federal Judicial Center, Supreme Court of the United States: Legislative History (documenting Congress’s statutory changes to the Court’s authorized membership, including the 1789 and 1869 laws); 28 U.S.C. § 1, Number of justices; quorum (providing for one Chief Justice and eight Associate Justices). ↩
  3. Federal Judicial Center, Supreme Court of the United States: Legislative History, entries for Sept. 24, 1789; Feb. 13, 1801; Mar. 8, 1802; Feb. 24, 1807; Mar. 3, 1837; Mar. 3, 1863; July 23, 1866; and Apr. 10, 1869. ↩
  4. Constitution Annotated, Supreme Court and Congress; Joanna R. Lampe, Congressional Research Service, Congressional Control over the Supreme Court, R47382. ↩
  5. Supreme Court of the United States, Justices 1789 to Present, appointing presidents and service dates. The count covers January 1970 through October 2026 and classifies each justice by the party of the appointing President. ↩
  6. U.S. Senate Judiciary Committee, Nomination of Merrick B. Garland, PN1258-114; Supreme Court of the United States, Justices 1789 to Present (Neil M. Gorsuch’s Apr. 10, 2017, accession); United States v. Texas, 579 U.S. 547 (2016) (affirmed by an equally divided Court); Friedrichs v. California Teachers Association, 578 U.S. 1 (2016) (same). ↩
  7. U.S. Senate, Roll Call Vote 116-2-224, confirmation of Amy Coney Barrett (Oct. 26, 2020); Supreme Court of the United States, Oath Ceremony for Amy Coney Barrett. ↩
  8. See Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023); Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024); and Trump v. United States, 603 U.S. 593 (2024). ↩
  9. Supreme Court of the United States, Trump v. Slaughter, 609 U.S. ___ (2026) (illustrating an active stare decisis analysis while overruling precedent). ↩
  10. Hank Stephenson, Where Court-Packing Is Already Happening, Politico (Oct. 12, 2020) (discussing Arizona’s 2016 expansion of its Supreme Court from five to seven justices); Thomas Byrne, Eversheds Sutherland (US) LLP, Georgia Supreme Court Expands as its Jurisdiction Contracts (May 4, 2016) (describing Georgia’s expansion of its Supreme Court from seven to nine justices and the appointment of the two additional justices by Gov. Nathan Deal); Sandy Dornsife, MultiState, Utah Shows How a Governor Can Remake a State Supreme Court in a Single Term (Court Report) (June 10, 2026) (describing Utah’s expansion of its Supreme Court from five to seven justices and Gov. Spencer Cox’s appointments to the two newly created seats); Simon Zschirnt, Packing State Supreme Courts: Analyzing the Dynamics of State Supreme Court Expansion, State Politics & Policy Quarterly 25 (2025), pp. 44–65 (reporting 157 state supreme-court size changes from 1789 through 2023). ↩
  11. Gallup, U.S. Supreme Court Begins Term With Historically Low Ratings (Sept. 30, 2026) (finding that 46% of Americans had a great deal or fair amount of trust in the federal judicial branch, the lowest level in Gallup’s trend dating to 1972, and that Supreme Court job approval was 34%). ↩
  12. Barry Cushman, Court-Packing in Context, written statement submitted to the Presidential Commission on the Supreme Court of the United States; Presidential Commission on the Supreme Court of the United States, Final Report (Dec. 2021), pp. 57–72. ↩
  13. Presidential Commission on the Supreme Court of the United States, Final Report (Dec. 2021), especially its discussion of Court expansion, including competing arguments concerning terminology, independence, legitimacy, escalation, and administrability. ↩
  14. U.S. Congress, S. 5076, 119th Cong., Supreme Court Biennial Appointments and Term Limits Act of 2026; Joanna R. Lampe, Congressional Research Service, Congressional Control over the Supreme Court, R47382. These sources describe the proposed nine-most-recently-appointed duty structure, biennial appointments, and competing constitutional arguments concerning term-limit structures. ↩
  15. Supreme Court of the United States, Code of Conduct for Justices (Nov. 13, 2023); Joanna R. Lampe, Congressional Research Service, Congressional Control over the Supreme Court, R47382. ↩
  16. 28 U.S.C. § 1, Number of justices; quorum; U.S. Const. art. II, § 2, cl. 2, Constitution of the United States; Supreme Court of the United States, Supreme Court Oaths History and Traditions (explaining that after Senate confirmation, the President signs a commission appointing the nominee, who must take the required oaths before executing the duties of office). ↩
  17. U.S. Senate, About Filibusters and Cloture; U.S. Senate, About Judicial Nominations, including discussion of the 2013 and 2017 precedents permitting simple-majority cloture on nominations. ↩
  18. U.S. Congress, H.R. 8647, 119th Cong., introduced May 4, 2026 (changing the number of Associate Justices from eight to 12 and the statutory quorum from six to eight); U.S. Congress, Judiciary Act of 2023, H.R. 3422, 118th Cong.; U.S. Congress, Judiciary Act of 2021, H.R. 2584, 117th Cong. ↩
  19. Supreme 13 endorsement directories: U.S. Senators, U.S. Representatives, State Democratic Parties, and Organizations. ↩
  20. Marquette Law School Poll, national survey release (Sept. 17, 2026), reporting a Sept. 2–9 SSRS Opinion Panel survey of 1,023 adults nationwide, a margin of error of plus or minus 3.3 percentage points, and 53% favoring and 47% opposing increasing the number of Supreme Court justices. Support was 68% among Democrats, 56% among independents, and 35% among Republicans; Marquette Law School Poll, prior national survey release (June 4, 2026), reporting a May 20–26 survey in which 50% favored and 50% opposed increasing the number of justices. ↩