On The Docket: Democrat Plans for the Supreme Court


The U.S. Supreme Court underwent much change in the last four years under President Donald Trump, with three new justices creating a 6-3 Republican-appointed majority. But in a few days, Democrats will take control of the White House and the U.S. Senate (with the tiebreaking vote of the Vice President), raising big questions about what the next few years hold in store for the nation's highest court.

Perhaps the biggest, and most controversial, issue facing the court is the attempt to "pack"---or add seats---to the high court. Democrats have been vocal in recent years about wanting to "expand" the Supreme Court to offset the Republican majority, with those calls reaching a fever pitch during the recent confirmation of Justice Amy Coney Barrett. Joe Biden was non-committal on whether he supports packing the court, but Democrats could face an uphill battle in doing so, with their razor-thin margins in the House and Senate. "As things stand now, you need a filibuster-proof majority...you need 60 votes...I don't think that's likely," says Josh Blackman with South Texas College of Law-Houston. "So as long as the filibuster remains in place, I think the Supreme Court stays at nine."

While Blackman expects the size of the court to remain intact, he does predict a change in the makeup of the court. "I think it's very likely that Justice Stephen Breyer steps down in the next six months or so," says Blackman. "He's in his 80s, and Democrats have a very small majority in Congress---by one vote in the Senate---so I think Breyer moves on and President Biden will appoint, as he's promised, an African-American female to the court."

Even if Justice Breyer is replaced, the court will remain squarely in the hands of Republican appointees. "On paper it's a 6-3 conservative court, although Roberts, Kavanaugh and Gorsuch kind of swing every now and then," says Blackman. "But I think you're going to see a stronger position on things like religious liberty, on gun rights, and you may see some positions on affirmative action."

"So I think you will see the court move to the right in some context."