Going into 2026 and 2028 it’s time for — essential for — Democrats to make clear that the current Supreme Court will have to reformed (expanded in number, reformed in structure) to allow popular government to continue in the United States. This is not so much a litmus test (though it should be that too) as a precondition for any other promise to be credible.
My own preference is for the number of justices to be increased by at least six, for terms of ten years (re-appointable) and the Court to be restructured to operate more like one of the federal appellate circuits. That’s just one broad idea, not necessarily the best one. To arrive at the best plan requires a thoroughgoing understanding of the mechanics of the federal judiciary that I lack. The key is not simply to dilute the power of the current majority by adding more constitutionalist/reform justices. You also need to add more uncertainty/unpredictability into just which justices decide which cases. If a different set of justices might review or revisit your new case law a few months or years later, I believe, that reduces the incentive to employ facially absurd reasoning which no one without an outcome-driven agenda would use. Changes like that and term limits are the best chances to embed new and durable changes in the Supreme Court that won’t be swamped by a tit-for-tat of expansions. In any case, the key is to make clear that the current system must be replaced and to get smart people thinking about the best thing to replace it with. You first have to decide you must travel between points A and B before you can start devising a plan for how to do so.
Reforming the federal government after Trumpism will require certain and durable limits on executive power and rogue presidencies. It will require pruning the statute books of all those laws which make it at least plausible that presidents can declare the justification for emergency powers and then decide on their own what they are. Having presidents bound by the law and answerable to it has to be made a reality again. None of that’s possible as long as a corrupt Supreme Court is on hand to make up new justifications for striking them down.
There remains a lot of resistance to these very necessary reforms. But the last eight months have confirmed the necessity of these reforms for anyone with their eyes open. No new legislation can have real impact as long as the Court not only ignores the Constitution but willfully misinterprets the plain meaning of statutes or (as it increasingly is) makes de facto rulings without issuing opinions that provide explanation, justification or precedent. The responsibility for this dangerous set of circumstances rests entirely with the corruption of the current members.
It’s also something all law professors and people in the legal academy/judicial world generally need to reckon with. Over the last three or four years there’s been a growing number of people in that world who’ve been forced to reckon with the current majority’s corruption and the need for reform. But quite a few still persist in making excuses for the current corruption as though it were a matter of different judicial philosophies, etc. In a way it’s professional self-preservation or professional identity at work because if the judicial/academic legal world isn’t a fact-analyzing, intellectual pursuit, a matter of scholarship and thought rather than mystification and pure power, then what are you doing exactly? Then it’s just PR work for people who got great grades as undergrads and nailed the LSATs. Under the current Court that’s what it is.
The obvious rejoinder to this argument is this: if you do this, won’t the Trumpist party just do the same thing in the other direction the next time they have a trifecta? Well, maybe they will. I’m okay with that. Because if that happens the general rounds of adding new members will lead to a general diminution of the power and centrality of the Supreme Court generally. That’s a feature rather than a bug. The point of a Supreme Court is to create a venue to settle constitutional disputes and interpretations of statute law. It’s not meant to be and shouldn’t be a Guardian Council running the country through a menu of made-to-order cases. Its posture should be reactive and characterized by restraint.
From a liberal or Democratic perspective you probably want a Court that will vindicate the rights of the marginalized or those excluded from power as well as be a break-glass backstop for the constitutional order. Clearly it’s not serving the first purpose (though some of that would be the legitimate outcome of elections). The last eight months demonstrates that it refuses to serve the second either. There has never been a clearer break-the-glass moment in the face of wild aggrandizements of executive power in American history. Far from acting to keep the executive within the bounds of the Constitution, the Court has gone out of its way to grease the skids for an autocratic takeover, even running interference against lower court Republican judges trying to enforce the Constitution. The current Court’s jurisprudence amounts to this: We are a nation of laws and have a system of checks and balances — unless the president really, really wants to do something and he’s a Republican. The Court will unquestionably return to a strict policing of executive power the next time a Democrat resides in the White House. Accepting that status quo means an effective end to democratic self-government inasmuch as it equates to expansive and autocratic executive power under Republicans, feeble and hamstrung executives under Democrats. Leaving the matter to future elections means accepting the status quo for at least a generation. The country doesn’t have that much time.
The final reason this is necessary is the analog to the need we’ve discussed to put people on notice that corruption will have future consequences. The most corrupt justices clearly believe there is no check on their power. Making clear that their capture of the Constitution will end the next time Democrats control Washington is the best way to curb their abuses in the near term.