In response to serious concerns, proposals to increase the number of justices on the US Supreme Court are seeing a resurgence in popularity. Global Insight examines what’s at stake.

Speaking at a recent civil rights conference, former US Vice President Kamala Harris declared that her country needed to revisit the idea of expanding the Supreme Court from nine to 13 justices. The proposal, part of a potentially sweeping set of reforms now being discussed with an eye on the post-Trump era, would seek to address concerns including that the Court is making inconsistent rulings to serve the Trump administration’s agenda.

The proposal would require an act of Congress and give the next president the opportunity to nominate four new Supreme Court justices. In theory, depending on who that next president is, this would be enough to convert the Court’s present six-to-three conservative majority to a seven-to-six liberal one.

In the eyes of many of its critics, the Court’s conservative majority under Chief Justice John Roberts has now wrongfully reversed key precedents of modern American jurisprudence. This majority was created after Senate Republican leader Mitch McConnell refused to seat President Barack Obama’s nominee Merrick Garland in 2016, delaying Senate action for ten months until the newly elected President Donald Trump could nominate Justice Neil Gorsuch. At the end of President Trump’s first term, Senate Republicans pushed the confirmation of Justice Amy Coney Barrett through the Senate in just one month, rushing to prevent the likely next present, Joe Biden, from being able to nominate a pick of his own.

‘We are in a position now that calls for some significant actions taken by the Congress, and we ought to expand’ the Court, said Jim Clyburn, a senior and influential Democratic member of the US House of Representatives, in August. He said he hoped to ‘get people on the Court who will follow the constitutional underpinnings of this great nation of ours’.

Days later, House Republicans forced a floor vote in an attempt to permanently lock the Court at nine justices via a constitutional amendment. While the proposal received the votes of the majority of House members, it fell far short of the two-thirds support needed to advance. Still, the effort to freeze the Court’s size before it can be changed gave opponents of the expansion plan an opportunity to send a message. ‘It fixes the number of justices at nine permanently, not because nine is a magic number, but because a fixed court cannot be expanded by whoever happens to win the next election,’ said Representative Andy Biggs, a Republican from Arizona, during the floor debate.

The demoralising pattern

What’s motivating proponents of the expansion plan now, in addition to the Roberts Court’s reversal of long-held precedents in areas such as abortion rights, is its more recent enabling of President Trump’s autocratic overreach. President Trump’s Department of Justice has won more than 70 per cent of the emergency applications filed on the Supreme Court’s ‘shadow docket’ without there necessarily being a ruling on the merits, according to analysis.

This trend is causing discomfort even within the judiciary. A number of federal judges have spoken about the demoralising pattern they face – they research contentious cases involving the Trump administration carefully, rule against the government and then watch the Supreme Court summarily reverse these judgments on the emergency docket with little or no explanation. These shadow docket rulings give lower courts no guidance and it makes it look as though the judges below the Supreme Court did shoddy or biased work.

The American public is growing sceptical of the Court’s increasingly obvious partisan tilt. In July, a Washington Post-Ipsos poll found that more than half of Americans disapprove of the Court’s job performance, and 46 per cent say it favours Trump administration policies ‘based on ideology rather than the law’. An AP-NORC poll conducted in June found that seven in ten adults believe that justices shape the law to fit their own ideologies rather than serving as an independent check on Congress or the President.

What’s new is that even when the Court delivers genuine legal defeats to the President, he manoeuvres around them without changing course on his policies. In February, the Court struck down President Trump’s unilateral and hefty tariffs imposed on US trade with nearly every other country in the world. The ruling, in Learning Resources, Inc. v Trump, held that the President had no authority to impose tariffs as he had claimed under the International Emergency Economic Powers Act (IEEPA).

In making the ruling, Chief Justice Roberts, joined by Gorsuch and Barrett, applied the Court’s relatively new ‘major questions doctrine’, which holds that a president must point to ‘clear congressional authorization’ when claiming authority to make decisions of ‘vast economic and political significance’. President Trump’s shifting tariffs have cost American households an estimated $1,100 annually, according to the Yale Budget Lab citing US government data as of late August. Tariffs presently imposed and scheduled would raise $1.4tn in revenue for the US government if they remained in place through 2035, according to analysis by the Tax Foundation, a non-partisan group based in Washington, DC.

Liberal Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson reached the same result through ordinary statutory text. There simply was no reference in the IEEPA statute authorising the president to impose tariffs. The president cannot, as Roberts put it, ‘point to clear congressional authorization’ for tariffs of ‘unlimited amount, duration, and scope’. Amid a presidency that has seen the executive branch trample statutory mandates and democratic norms of governance, it was a rule-of-law assertion by the judiciary.

President Trump called the justices ‘fools and lap dogs’. Within days his administration had announced new tariffs under a different statute alongside plans for still more under other trade laws. He went on to open a trade war with Canada, attempting to impose 50 per cent tariffs on cross-border commerce. The Trump administration accuses Canada – a fellow member of the North American free trade block – of ‘discriminatory treatment of US commerce,’ while Ottawa says Washington is engaging in unfair trading practices.

Months later, the pattern repeated itself. In June, the Supreme Court rejected President Trump’s executive order that had attempted to discontinue birthright citizenship for the children of undocumented immigrants. Roberts and Barrett joined the three liberals on the Court in a five-to-four ruling, finding that the order violated the plain language of the 14th Amendment.

In a development that has troubled many constitutional scholars, three conservative justices issued opinions that would reinterpret the Constitution to allow President Trump’s policy to proceed. Justice Clarence Thomas, joined by Gorsuch, wrote a 91-page dissent arguing birthright citizenship has always depended on parental domicile. Justice Samuel Alito dissented separately on a theory of ‘allegiance’ that attempted to dismiss 150 years of legal interpretation. The 14th Amendment says that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside’. While not joining the constitutional holding of the majority, Justice Brett Kavanaugh agreed that the order was unlawful on statutory grounds, potentially leaving the door open for Congress to restrict birthright citizenship in future.

President Trump said it was ‘too bad for our Country’ that the Court had upheld birthright citizenship and called on Congress to reverse it through legislation. Two months later, he issued a new executive order targeting the citizenship of children born in the US through what administration officials call ‘birth tourism’. That order is now being litigated.

The weakened model

Emerging democracies have looked to the US as a model of an independent judiciary, however imperfect. A Supreme Court that decides consequential cases with no explanation and now faces open warfare over its composition is not a strong example. It calls into question whether the US model is worth emulating.

Advocates for reform argue that the Court’s present structure lets a powerful minority control the direction of American law against the will of most of the country. An unresolved question is whether any future legislation imposing term limits, narrowing jurisdiction or expanding the number of justices would survive review by the very same people whose power would be diluted.

Some constitutional scholars have argued against court expansion. ‘Any attempt to increase the size of the Court would be widely, and correctly, regarded as a partisan interference with the independence of the court,’ Michael McConnell, Director of the Constitutional Law Center at Stanford Law School, told a bipartisan commission studying Supreme Court reforms in 2021.

Noah Feldman, the Arthur Kingsley Porter University Professor at Harvard Law School, said that appointing new justices for the purpose of altering the Court’s jurisprudence would inevitably undermine its legitimacy. Doing so ‘would indicate to the public that Congress and the president seek to control the meaning of the Constitution,’ Feldman said.

Congress changed the Court’s size seven times in the early history of the American republic from 1789 to 1869. President Franklin Roosevelt proposed adding six justices in 1937. Roosevelt’s bill didn’t make it through the Senate and the Court itself has never ruled on the constitutionality of such laws.

The high court’s new 2026–27 term opens in October and is expected to once again test whether the conservative majority is willing to revisit precedents once treated as settled law. If the law bends whenever at least five justices want it to, then it is the number of votes, not precedent, that actually governs.

The justices are scheduled to hear argument in November over whether a Colorado preschool can decline to serve LGBTQI+ families under a state funding programme. Two cases arising out of Texas and Louisiana will test whether states can force schools to display the ‘Ten Commandments’ of Christianity in classrooms. An argument scheduled for December will assess whether Arizona can require individuals to show proof of citizenship before registering to vote.

And the emergency docket will be busy. The Court denied the Trump administration’s request to implement part of its mail-in voting rule in September, suggesting fights over election administration will be at the forefront of its agenda.

William Roberts is a US-based freelance journalist and can be contacted at wroberts3@me.com