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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, reconnect the Court’s size to the federal appellate system, 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: August 28, 2026

The Proposal and Why 13

  • Supreme 13 advocates increasing the Supreme Court’s authorized membership from nine justices to 13 through federal legislation. The proposal is intended to restore democratic balance, reconnect the Court’s size to the federal appellate system, and help rebuild public trust.

    Procedurally, Congress would amend 28 U.S.C. § 1, which currently provides for one Chief Justice and eight Associate Justices. The President would sign the bill, and four additional seats would become available. The President would then nominate candidates, and the Senate would consider each nomination separately.1

    Learn more about Supreme 13 and its editorial standards. See also How would Supreme Court expansion become law, and how would new justices be appointed?

  • 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 regional circuits, when Supreme Court justices also traveled to hear cases on the circuit courts.2 Thirteen justices would therefore provide a clear connection to the modern appellate system and to historical practice.

    More importantly, 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 chambers of Congress, structural reform of the Supreme Court through expansion should be considered as an essential part of protecting any legislative agenda enacted during a Democratic administration.

    For deeper treatment, read The Constitutionality of Expanding the Supreme Court. 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, and current law provides for one Chief Justice and eight Associate Justices.3

    The prevailing legal view is that Congress may increase the Court’s prospective authorized membership through ordinary legislation. Congress has repeatedly changed the number of seats by statute rather than by constitutional amendment.

  • Yes. The First Congress created a six-member Supreme Court 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.5

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

    For the full legislative history, read The Constitutionality of Expanding the Supreme Court.

  • The Supreme Court has not decided a modern challenge to a federal law adding seats to the Court.

    But the constitutional basis for Congress’s authority to expand the Supreme Court rests on several mutually reinforcing sources: the text of Article III, the absence of any constitutionally prescribed number of justices, more than two centuries of congressional control over the Court’s statutory size, and repeated acts of Congress changing that size.4

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 changes in constitutional and administrative law, recurring ethics concerns, and low public confidence in the Court.

    These and other developments have created a structural problem that ordinary vacancy-by-vacancy turnover is unlikely to correct in a reasonable period. Expansion enacted after an explicit electoral debate would be a democratic response through the political branches, not a direction to judges about how to decide cases.

    For more, see Choice, Circumstance, and the Case for Supreme Court Expansion.

  • Since 1970, 14 of the 19 justices were nominated by Republican presidents and 5 by Democratic presidents. Every fully staffed Court during that period has had a majority appointed by Republican presidents.6 Yet from 1970 through July 2026, Republican presidents have only occupied the White House for approximately 32 years (57% of the period), while Democratic presidents have occupied the White House for 24 years (43% of the period).

    Life tenure, the timing of deaths and retirements, and Senate decisions about whether to consider nominees have produced a Court whose long-term appointment pattern is only loosely connected to repeated presidential and congressional elections.

    In 2029, a governing coalition that openly campaigned on expansion should legitimately use legislation and the Article II appointment process to address that accumulated pattern.

  • Justice Antonin Scalia died on February 13, 2016. President Barack Obama nominated Merrick Garland on March 16, but the Republican-controlled Senate held neither a confirmation hearing nor a 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.7

    Justice Ruth Bader Ginsburg died on September 18, 2020. The same Senate leadership proceeded with President Donald Trump’s nominee, Amy Coney Barrett. The Senate confirmed Barrett on October 26, eight days before the presidential election.8

    Although the Senate had constitutional authority to withhold consent in 2016 and to provide it in 2020, in doing so its leaders invoked materially different election-year principles, with 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 the federal constitutional right to abortion recognized in Roe v. Wade. Students for Fair Admissions restricted race-conscious admissions. Loper Bright Enterprises v. Raimondo overruled the Chevron framework for judicial review of agency interpretations. Trump v. United States recognized substantial immunity for official presidential acts.9

    Although reasonable people may disagree about those rulings and about expansion, it cannot reasonably be argued that judicial philosophy and Court composition do not matter greatly, particularly in closely divided or doctrine-changing cases. See Would expansion guarantee outcomes or automatically reverse precedents?

  • 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 also would not erase any precedent. The Court can reconsider one of its decisions only when a proper case presents the issue and a majority concludes that the governing stare decisis analysis permits or requires a different rule. The Court considers 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.10

The Strongest Objections

  • The term “court-packing” has been used pejoratively to mean changing the Court’s size in order to influence its future direction. But every Supreme Court nomination gives a President an opportunity to influence the Court’s future direction.

    “Supreme Court expansion” by a unified Democratic president and Congress in 2029 would be a lawful structural response to earlier institutional escalation.

  • Expansion might rebuild trust for some people and deepen distrust for others.19 But for a Democratic agenda, the risks of inaction are greater.

    Inconsistent vacancy practices, the appearance of partisan advantage in appointments, recurring ethics controversies, and abrupt doctrinal change have already damaged confidence in the Court.

    Congress has legal authority to change the Court’s size and has done so in the past, meaning that the Court would continue to be legitimate whether composed of nine or 13 justices.

    As for its “independence,” life tenure gives justices a substantial measure of institutional independence. But the justices do not come to the Court with a neutral slate. They have their own political ideologies, which no doubt influence their opinions. Expanding the Court in 2029 would merely recognize that reality.

  • Yes. Unless the Constitution were amended to fix the number, a later Congress and President could enact another law changing the Court’s size. A 13-seat statute could not legally bind a future Congress to keep 13.

    Although the number 13 has a stated connection to the modern appellate system and historical practice, the proposal to add four seats at once may prompt a future Congress to take similar action if it deems the Court in need of rebalancing.

    State experience provides limited context. One study identified 157 changes in the size of state supreme courts from 1789 through 2023—120 increases and 37 decreases. That history shows that a size change does not inevitably trigger an endless sequence, but state institutions differ from the federal system and cannot predict what Congress would do.12

    The risk of escalation is real, and after Congress expands the Court to 13 seats, it would be wise to pursue a change in the appointment structure of the Court to ensure a more regular system of nominations and changes to the Court’s active membership. But because some proposed changes to Supreme Court structure could face constitutional challenges before the current conservative-majority Court, the first reasonable step in pursuing Court reform should be expansion.

  • Yes and no. 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.13

    But the episode remains relevant—and, to a certain extent, a success—because it demonstrates the political pressure Congress can put 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. The phrase “the switch in time that saved nine” remains famous, but Roberts cast the decisive vote before Roosevelt announced the plan, and historians dispute what caused the Court’s broader doctrinal shift.13 The lesson remains that Congress has ways to rein in a rogue Supreme Court.

  • Although the United States Supreme Court has never had 13 seats, there is no reason to believe that it could not continue operating in the same manner as the current nine-member Court. Indeed, it could be more efficient. With more justices, the Court could distribute circuit, emergency, and institutional responsibilities more broadly.11

  • In a functioning democracy, political reform should be pursued through elections. That is exactly what is being proposed here. Expansion would require voters to elect a President and members of Congress who are prepared to enact it, followed by presidential nominations and Senate confirmations. It would not bypass electoral politics.

    The disagreement concerns what elections should be allowed to change. 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 opportunity. Waiting for unpredictable vacancies is not an adequate remedy to address a Court that has had a Republican-appointed majority since 1970.

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.

    Term limits and expansion address different problems on different timelines. Term limits principally regularize future turnover. Expansion changes the Court’s authorized membership and, once seats are filled, affects its present structure. A transition that protects sitting justices’ Article III tenure may take years before a regular appointment system materially changes the justices hearing ordinary appeals.

    The legal pathway is also disputed. S. 5076, introduced in the 119th Congress, would generally assign ordinary appellate participation to the nine most recently appointed justices, provide for appointments every two years, and begin that cycle with the first full presidential term after enactment. If enacted after January 20, 2029, that language would point to a cycle beginning January 20, 2033. Some scholars argue that Congress may structure judicial duties by statute; others contend that a constitutional amendment would be required. The bill itself does not settle that constitutional debate.15

    Supreme 13 supports term limits as a possible complement but 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 visibility into 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.16 Proposals for stronger enforcement therefore remain distinct from the existence of the code itself.

    These reforms are all worthwhile, but none directly changes the Court’s current authorized membership. Whether to combine them with expansion is a policy choice. But they should be evaluated on their own objectives, legal basis, and implementation risks, and not as an alternative to 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. Under the prevailing legal view, a constitutional amendment would not be required to add seats.

    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. A confirmed nominee would then join the Supreme Court.

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

  • Not necessarily, but under current practice it could be a central obstacle to legislation. Final passage of a bill requires a majority of senators 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 enough additional senators to end debate, unanimous or negotiated consent to proceed, a change in Senate rules or precedent, or a tailored exception. The precise route would depend on the Senate’s membership, leadership, and procedures at the time.

    But changing the rules related to 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.

  • As of August 28, 2026, H.R. 8647 was pending in the 119th Congress. Representative Al Green introduced the bill on May 4, 2026, and it was referred to the House Judiciary Committee. Its operative text would change the number of Associate Justices from eight to 12.14 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 that the President and Congress could be unified under Democratic control. For Republicans, there is no current incentive to increase the size of the Supreme Court because six of its nine members were appointed by Republican presidents, and the Court has generally produced opinions that align with Republican priorities.

    The risk of inaction is that a Democratic administration beginning in 2029 could see major elements of its agenda blocked by the Court’s conservative majority, just as the Court blocked or curtailed major Biden administration policies involving student-debt relief, workplace COVID protections, eviction protections, and environmental regulation.

Support and Public Opinion

  • Public opinion is growing in favor of expansion. A May 2026 Marquette Law School national survey asked respondents to choose between favoring and opposing “adding more justices to the Supreme Court.” It reported 50% in favor and 50% opposed, with a margin of error of plus or minus 3.4 percentage points.20

    A separate Verasight survey in February 2026 asked specifically about increasing the Court from nine to 13, and it found 39% support, 32% oppose, and 29% not sure.21

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.

Supporters should represent evidence and disagreement accurately. The case for structural reform is stronger when readers can distinguish verified facts, legal analysis, political prediction, and advocacy judgment.

Sources and Notes

All current-status sources and maintained Supreme 13 pages below were last checked August 28, 2026, unless otherwise stated. Bill status, endorsement counts, officeholders, poll links, and internal URLs should be confirmed immediately before publication.

  1. 28 U.S.C. § 1, Number of justices; quorum; U.S. Const. art. II, § 2, cl. 2, Constitution of the United States. ↩
  2. 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. ↩
  3. U.S. Const. art. III, § 1, Constitution of the United States (establishing one Supreme Court, protecting judicial tenure during good behavior, and barring diminution of compensation while in office). ↩
  4. Constitution Annotated, Supreme Court and Congress; Joanna R. Lampe, Congressional Research Service, Congressional Control over the Supreme Court, R47382. ↩
  5. 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. ↩
  6. Supreme Court of the United States, Justices 1789 to Present, appointing presidents and service dates. The count uses Jan. 1, 1970, through Aug. 28, 2026, and classifies each justice by the party of the appointing President. ↩
  7. 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). ↩
  8. 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. ↩
  9. 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). ↩
  10. Supreme Court of the United States, Trump v. Slaughter, 609 U.S. ___ (2026) (illustrating an active stare decisis analysis while overruling precedent). ↩
  11. 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. ↩
  12. Simon Zschirnt, Packing State Supreme Courts: Analyzing the Dynamics of State Supreme Court Expansion, State Politics & Policy Quarterly 25 (2025), pp. 44–65. The study reports 157 state supreme-court size changes from 1789 through 2023. ↩
  13. 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. ↩
  14. U.S. Congress, H.R. 8647, 119th Cong., introduced May 4, 2026. The introduced bill text changes the number of Associate Justices from eight to 12 and the statutory quorum from six to eight; the bill was referred to the House Judiciary Committee. ↩
  15. 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. ↩
  16. 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. ↩
  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. Supreme 13 endorsement directories: U.S. Senators, U.S. Representatives, and Organizations. ↩
  19. U.S. Congress, H.J. Res. 1, 119th Cong., proposing a constitutional amendment fixing the Court at nine justices; H. Rept. 119-732 (July 6, 2026), presenting the committee majority’s arguments concerning judicial independence, retaliation, legitimacy, and historical practice. ↩
  20. Marquette Law School Poll, national survey release (June 4, 2026), reporting a May 20–26 SSRS Opinion Panel survey of 1,001 adults, a margin of error of plus or minus 3.4 percentage points, and a 50%–50% forced choice on adding more justices. ↩
  21. G. Elliott Morris, Two-thirds of Americans want term limits for Supreme Court justices (Feb. 26, 2026), reporting a February 18–20, 2026, Verasight survey of 1,566 adults, a margin of error of plus or minus 2.5 percentage points, and 39% support, 32% oppose, and 29% unsure on increasing the Court from nine to 13. ↩