Thirteen Supreme Court Justices? Those Are Rookie Numbers.
A functional democracy can't have a single SCOTUS swing vote determining the course of history
If you drill down into the very core of the Democratic Party establishment and you keep drilling and keep drilling until you’re at the molten center, there you’ll find Jim Clyburn, smiling, soft spoken, defining what is and is not possible for the party and doing his king-making thing for the party’s presidential hopefuls.
A congressman since the early 90s representing a South Carolina congressional district that includes the majority-Black precincts in and around Columbia and Charleston, you may remember Clyburn from recent wars for the soul of the Democratic Party such as the 2020 presidential race, when Clyburn joined the rest of the party’s establishment in rallying around Joe Biden as the only path to beating back Bernie Sanders’ nightmare vision of a more free and fair United States in which everyday folks get to have a sliver of dignity. Clyburn’s Biden endorsement got the job done, all but guaranteeing a second Trump term.
Become a Bad Faith Times supporter today and get access to BFT videos and the BFT discord channel.
You may know Clyburn as the guy who, according to reporting from ProPublica, worked closely with South Carolina Republican legislators during 2020 congressional redistricting to “dilute the state's Black vote,” creating a new congressional map that gave Democratic candidates "virtually no shot of winning any congressional seat in South Carolina other than Clyburn’s."
You might also remember Clyburn as one of the congressional Democrats who pushed hard for Clarence Thomas to join the Supreme Court even after allegations of sexual misconduct had been lodged against him. Thomas, Clyburn said at the time, is a “personal and professional friend” who belonged on the land’s highest court, where he would quickly and predictably become the most virulently anti-constitutional judge in American history, a democracy hater without equal.
Clyburn forcefully denied the ProPublica report on redistricting, and he said recently that he regretted pushing Thomas as a SCOTUS nominee. Nevertheless, Jim Clyburn persists.
When a stodgy establishment Democrat like Clyburn – someone seemingly committed to ensuring Nothing Will Fundamentally Change – comes out with a clear-eyed proposal to fundamentally shift the US back toward liberal democracy status, it’s meaningful. That’s exactly what happened on Sunday when Clyburn, during one of those Sunday morning talk shows no one has cared about since 30 Rock was on the air, said the Supreme Court should be expanded.
Denny Carter
“I think that we are in a position now that calls for some significant actions taken by the Congress, and we ought to expand it,” Clyburn said. “Thirteen is a pretty good number; a baker’s dozen will be a good number to have on the court.”
Even a hardcore establishment Democratic Party figure like Clyburn can see – finally, many years too late – that a representative democracy can’t survive with a captured institution like the Roberts Court working as an arm of the Republican Party, protecting its figureheads, ignoring decades or even centuries of legal precedent, and blocking any and all attempts to implement progressive policies as a means of crawling out of the competitive authoritarian hellhole in which we live today.
Perhaps Clyburn can see that a high court that operates with such naked and weaponized bad faith can’t go unreformed if the US is ever going to stop its small-d democratic bleeding. With that (apparent) recognition, Clyburn joins Kamala Harris, another establishment figure who has endorsed the idea of 13 SCOTUS justices.
It’s not enough though. Thirteen? Those are rookie numbers. You gotta pump up those numbers.
Tacking on four presumably pro-constitutional justices to the Court would give liberals a slim 7-6 majority. You're saying but wait, that’s so much better than today’s 6-3 far-right supermajority. And yeah, you're right. I'd take it over what we have today. But it leaves far too much wiggle room for Roberts and company to keep ratfucking the country. All it would take, as you know if you’ve done the math, is for one of the four newly seated justices to be swayed by a member of the Court’s right wing and that would be that. That would be the ballgame.
This is where I once again ask you to check out my book, After The Great Redo. It's speculative fiction about a brighter American future, complete with an expanded and reformed SCOTUS. You can purchase the book on Amazon or Bookshop.org.
The part of the U.S. population that wants nice things that other democratic republics have – free or affordable college, healthcare, housing, pre-K, family leave, a strong floor through which (almost) no one can fall – would be sweating every single Supreme Court decision, the way we do today. The country’s path back to democracy status and the re-establishment of the rule of law – and consequences of the Trump regime’s endless crime spree – would hinge on a single Supreme Court justice over and over and over again. Pulling the plug on the American right’s vast, bad-faith cheating scheme would hinge on one SCOTUS vote, one jurist who would determine the future of American democracy time and again.
That’s far too much variance and unpredictability for such high civilizational stakes. A 7-6 liberal SCOTUS majority would leave too much to chance, leaving open avenues for the right’s menacing judicial machine to keep churning in ways that puts Democrats at a perpetual disadvantage and give GOP lawmakers and candidates precious little reason to de-radicalize and fall in line with small-d democratic norms (the reason Republicans on your TV sound like Alex Jones on a particularly bad bender is because the evisceration of campaign finance laws and fair congressional districts leave no reason to moderate, no reason not to sound like an absolute red-pilled freak).
Imagine, if you will, a massive Democratic congressional majority (mostly) free of Republican Lite influences passing a healthcare bill that includes a public option, as they should have done with passage of the Affordable Care Act. Imagine the thrill of watching a Democratic president sign that bill into law. Imagine how happy you’d be, how invigorated, how relieved you’d be that good and bad things are not, in fact, the same. Now imagine three or six or nine months later when the expanded Supreme Court takes up the constitutionality of the nation’s new healthcare law, and imagine the bile rising in your throat and the sweat forming on your brow when you get the push notification: SCOTUS has ruled against the law in a 7-6 vote. It's dead. It's gone.
Denny Carter
Millions of working class and middle class families would have finally had access to real healthcare paid for with tax increases on dudes with three yachts and a palatial underground bunker from where they will restart society if or when the nukes start flying. Democrats’ chance to tell working Americans that they gave them their healthcare – not Republicans – would be gone. A shining example of what can happen when public servants are elected to high office – not oligarchal criminals – would vanish in an instant. One vote. A single vote. That’s all it took. It would hit you all at once: Adding just four justices to John Roberts' Cursed Court was a mistake.
So no, thirteen Supreme Court justices is not enough. Maybe 15 or 17 or even 21 justices would do the trick, along with strict term limits and maybe even alternating SCOTUS appointment schedules. Not thirteen though. Again: Those are rookie numbers.
Back in 2018, Jacob Hale Russell, a professor at Rutgers Law School, laid out an eminently reasonable argument for why Democrats and the party's base were thinking too small when it comes to expansing the Supreme Court and counterbalancing the Court's anti-constitutional forces.
The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.
A much larger Supreme Court, Hale Russell argued, would be "more comparably sized to our federal circuit courts" and rid the country of "the influence of a single swing voter" like Anthony Kennedy or Sandra Day O’Connor – someone charged with the final say in empire-shifting legal decisions. Making SCOTUS three times bigger, Hale Russell charged, would effectively destroy the anti-democratic Major Questions Doctrine that has given a distinct and long-held advantage to right-wing activists and attorneys whose life goal is to repeal the 20th century.
Denny Carter
"The framers," Hale Russell wrote, "would be appalled by the degree to which we have abdicated responsibility for the constitution to a small, homogenous, unelected group. We should be appalled too."
Republicans stealing Antonin Scalia’s open seat and Ruth Bader-Ginsberg’s history-changing decision to remain on the Court have put pro-democracy forces in a deep fucking hole – far too deep for a single SCOTUS justice to be a swing vote on whether we continue our competitive authoritarian path or reverse course and push back against the plutocratic plot to end American democracy in every meaningful way.
If Democrats ever decide to expend the entirety of their political capital on the Only Thing That Matters – expanding (and reforming) SCOTUS – it can't be a half-assed plan. Either do the thing or don't do it, but don't recreate a high-stakes legal scenario in which one swing vote on the Court is all that matters. That is no way to maintain a vibrant democracy that can defend itself against bad-faith actors. Saving the Supreme Court has to be bolder than that; it has to leave no avenues for the American right to continue its dominance of our politics. None. Zero.
So no, a baker's dozen is not a good number, Jim Clyburn.
Follow Denny Carter on Bluesky at @dennycarter.bsky.social.
