By Douglas V. Gibbs
The proposal to expand the Supreme Court has resurfaced in American political discourse, with former Vice President Kamala Harris, during a statement in which she said “there are no bad ideas,” expressing support for adding liberal justices to the High Court. This controversial idea, which President Franklin D. Roosevelt famously attempted in 1937, has reignited a fierce debate about judicial independence and political power.
During a recent segment on Fox News’ The Sunday Briefing, a clip of Congresswoman Pramila Jayapal (D-WA) defending the concept of court expansion was played. She stated, “It’s a message I’ve had for quite a while. You know, we need transparency and accountability on the Supreme Court. It has been expanded in the past to reflect the changes in population. That’s not a crazy idea. It’s been done throughout the history of our country.”
Jayapal’s reference to historical precedents is factually accurate in the sense that the number of justices has been changed a number of times, but it wasn’t due to population increases. This is where Congresswoman Jayapal’s explanation runs into problems when it comes to the truth about history. Then again, since when did any Democrat care about the truth?
The Supreme Court has indeed changed size seven times throughout American history, ranging from as few as five justices to as many as ten. The Judiciary Act of 1789 initially established six justices, and Congress adjusted the number several times before settling on nine in 1869. These changes were politically motivated, with presidents and Congress seeking to influence the court’s ideological composition. Historical evidence demonstrates that Congress routinely changed the number of justices to achieve its own partisan political goals, resulting in as few as five Supreme Court justices under John Adams to as many as ten under Abraham Lincoln.
The Judiciary Act of 1801 decreased the number of Supreme Court justices from six to five, a move specifically designed to lower the odds that President-elect Thomas Jefferson would get to nominate a new justice during his term. This was a clear partisan move by the outgoing Hamiltonian Federalists to limit their political rivals’ power.
In response, Jefferson and his new Congress quickly repealed the Judiciary Act of 1801, bringing the number of justices officially back to six, demonstrating how changes to the court’s composition were often immediate responses to political power shifts.
The last time Congress changed the number of Supreme Court justices in 1869 was to meet a political end regarding the election of Ulysses S. Grant, with the backing of congressional Republicans who had opposed President Andrew Johnson.
Perhaps the most famous attempt was Franklin D. Roosevelt’s 1937 court-packing plan, which was motivated by his desire to push through his New Deal legislation that the Supreme Court had continually worked against during his first term. The plan was to force justices to retire at age 70, and increase the number of justices to 15. The Judicial Procedures Reform Bill of 1937 was introduced to Congress, but it was ultimately defeated.
When Peter Doocy on FOX’s The Sunday Briefing during his segment regarding Kamala Harris’s comment regarding expanding the Supreme Court asked Meghan Hays, Former Biden Message Planning Director, about the current court-packing discussions and what Congresswoman Jayapal said, she responded with a statement that revealed a stunning lack of constitutional knowledge: “It’s interesting to hear that Congress is talking about this when they don’t actually decide this, so I don’t know why they would make that a campaign slogan.”
Hays’ assertion that Congress doesn’t decide the size of the Supreme Court is not only incorrect but demonstrates a fundamental misunderstanding of the Constitution. Article III, Section 1 of the Constitution states that “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Constitution explicitly grants Congress the authority to establish and structure the federal judiciary, including determining the number of Supreme Court justices.
This constitutional ignorance from a former Biden administration official is particularly striking given how frequently Democrats position themselves as defenders of constitutional norms, especially when they attack President Trump’s policies. The irony is palpable: while dismissing discussions of court-packing as mere political slogans, Hays herself demonstrated a lack of understanding of the very constitutional principles she claims to protect.
The most infamous court-packing attempt, FDR’s Judicial Procedures Reform Bill of 1937, was precisely a congressional proposal. Roosevelt’s plan to add up to six new justices was introduced as legislation in Congress, where it was ultimately defeated. The historical precedent clearly shows that court-packing, whether one supports it or opposes it, is unquestionably within Congress’s constitutional authority.
The fundamental tension in the court-packing debate centers on competing visions of constitutional interpretation and judicial philosophy. Proponents argue that expanding the court would restore balance to a judiciary they believe has been captured by ideological extremists. Opponents warn that such a move would undermine judicial independence and transform the court into just another political institution, eroding the separation of powers that has characterized American governance.
Be it Jayapal’s historical ignorance or Hays’ constitutional ignorance, the fundamental misunderstanding is not merely an academic error but speaks to a broader pattern of constitutional illiteracy among those who claim to be its guardians. When political operatives tasked with message planning lack basic knowledge of constitutional structure, it raises serious questions about the quality of policy discussions and the depth of constitutional understanding within modern political discourse.
As this debate continues, Americans need to pay close attention to the rhetoric. We have Democrats who act like they are above everyone on their elite political perches, but as Jayapal and Hays demonstrated, they don’t even know the basics of history and the United States Constitution. It’s not just about history and the Constitution, but making sure that if we are going to listen to so-called experts, those experts should know at least basic historical and constitutional truths – otherwise, they are nothing more than barking propagandists.
— Political Pistachio Conservative News and Commentary
