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DEMS SHOULD COMMIT TO EXPANDING THE SUPREME COURT  
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Michael Tomasky
June 26, 2026
The New Republic
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_ There is a smart and totally justified way to do it: Increase the
number of judicial circuits. _

'Unrig the Court' rally, screen grab

 

Was Thursday among the darkest days in the history of the Supreme
Court? You could make a case. First, a majority cleared the way for a
pesticide manufacturer to get thousands of lawsuits off its books from
farmers who’d used its product and gotten cancer. Next, it ruled
that the administration could turn away asylum-seekers at the border.
And then it held that gun owners could now freely carry their weapons
into private establishments that serve the public.

Let’s pause over that one for a paragraph. Here’s a good
description
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of the particulars of the gun case and the legal arguments on both
sides. But the upshot is this: Everywhere in America, gun owners will
presumably be able to take their guns to shops, stores, malls, movie
theaters, restaurants, _bars,_ amusement parks, Baby Gaps, you name
it. Does any rational person think that the Founders, who simply
wanted men to have muskets to protect themselves from invaders, would
want someone to be able to take a military-style semiautomatic rifle
and 600 rounds of ammo into a Chuck E. Cheese?

But the worst of Thursday’s big four decisions was _Mullin v. Doe,_
which will allow the Trump administration to begin deporting Haitians
and Syrians who were granted Temporary Protected Status by the Obama
administration in 2010 and 2012, respectively. My colleague Matt Ford
shredded
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the decision in his piece, writing that the court “effectively
blessed Trump’s bigotry toward Haitians and dealt potentially
catastrophic damage to federal civil rights laws.”

The cases combine to give the executive branch more power. They turn
several lower court decisions on their head (as _The New York Times_
notes
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today, immigration hard-liners had lost case after case on TPS until
yesterday). And in the case of _Mullin,_ in particular, the highest
legal authority in the land—namely, Samuel Alito, writing for the
majority—pretends that Donald Trump’s blatant racism toward
Haitians doesn’t exist; that there was nothing “overtly racial”
in Trump’s many disgusting and false comments about the Haitian
community of Springfield, Ohio, and beyond.

This conservative court is out of control—blatantly partisan and
ideological, the six-member majority scarcely even pretends otherwise
anymore.

Some major decisions about executive power—Trump’s power—are yet
to be handed down this term, involving the firing of Fed Governor Lisa
Cook, the removal of Democratic appointees from independent agencies,
and of course the birthright citizenship case. If the court rules
predictably on two of these three, or certainly on all three, it will
have completed a term—with the aforementioned four decisions already
on the books, as well as _Callais v. Louisiana_
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which did away with Section 2 of the Voting Rights Act—that might
well be the most reactionary in its history. And all this is on top of
the earlier reversal of a 49-year-old precedent in 1973’s _Roe v.
Wade_ and the handing to Trump of sweeping immunity for all
“official” acts.

It’s now unavoidable: This has to be a front-and-center issue in
2028. Democratic presidential contenders will have to answer the
question: What do you plan to do about the Supreme Court?

Many of them will be afraid to dip a foot into these waters. They
shouldn’t be. Poll after poll shows us that majorities disapprove of
the court and think of its decisions as being more political than
jurisprudential. According to Gallup
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the court topped 50 percent five years ago and has stayed there ever
since (in contrast, that number was just 29 percent as recently as
2010). So the public—not just the progressive base of the party—is
ready to hear ideas.

Some major decisions about executive power—Trump’s power—are yet
to be handed down this term, involving the firing of Fed Governor Lisa
Cook, the removal of Democratic appointees from independent agencies,
and of course the birthright citizenship case. If the court rules
predictably on two of these three, or certainly on all three, it will
have completed a term—with the aforementioned four decisions already
on the books, as well as _Callais v. Louisiana_
[[link removed]]_,_
which did away with Section 2 of the Voting Rights Act—that might
well be the most reactionary in its history. And all this is on top of
the earlier reversal of a 49-year-old precedent in 1973’s _Roe v.
Wade_ and the handing to Trump of sweeping immunity for all
“official” acts.

It’s now unavoidable: This has to be a front-and-center issue in
2028. Democratic presidential contenders will have to answer the
question: What do you plan to do about the Supreme Court?

Many of them will be afraid to dip a foot into these waters. They
shouldn’t be. Poll after poll shows us that majorities disapprove of
the court and think of its decisions as being more political than
jurisprudential. According to Gallup
[[link removed]], disapproval of
the court topped 50 percent five years ago and has stayed there ever
since (in contrast, that number was just 29 percent as recently as
2010). So the public—not just the progressive base of the party—is
ready to hear ideas.

Some major decisions about executive power—Trump’s power—are yet
to be handed down this term, involving the firing of Fed Governor Lisa
Cook, the removal of Democratic appointees from independent agencies,
and of course the birthright citizenship case. If the court rules
predictably on two of these three, or certainly on all three, it will
have completed a term—with the aforementioned four decisions already
on the books, as well as _Callais v. Louisiana_
[[link removed]]_,_
which did away with Section 2 of the Voting Rights Act—that might
well be the most reactionary in its history. And all this is on top of
the earlier reversal of a 49-year-old precedent in 1973’s _Roe v.
Wade_ and the handing to Trump of sweeping immunity for all
“official” acts.

It’s now unavoidable: This has to be a front-and-center issue in
2028. Democratic presidential contenders will have to answer the
question: What do you plan to do about the Supreme Court?

Many of them will be afraid to dip a foot into these waters. They
shouldn’t be. Poll after poll shows us that majorities disapprove of
the court and think of its decisions as being more political than
jurisprudential. According to Gallup
[[link removed]], disapproval of
the court topped 50 percent five years ago and has stayed there ever
since (in contrast, that number was just 29 percent as recently as
2010). So the public—not just the progressive base of the party—is
ready to hear ideas.

It would all be completely constitutional and completely legal. Which
is more than can be said for a lot of the things Trump and the
Republicans are getting up to, as they try to find new and blatantly
illegal ways to stop mail-in voting and otherwise take the franchise
away from citizens.

But the big door-opener here by Trump and the GOP is their rancidly
unconstitutional mid-decade redistricting move. The Constitution
clearly and plainly states that districts will be redrawn every 10
years, after the decennial census. What Trump and his party are doing
with this redistricting is completely lawless.

Once they’ve done that, all bets are off. Democrats should do
whatever they need to do to rebalance power. But—they should stay
within the law. What I’m talking about here, what Johnson’s bill
would accomplish, would be entirely within the law. Congress can set
the size of the Supreme Court. And I believe that a smart Democrat,
framing the argument the right way, can take that case to the American
people and win it. He or she can convince the voters that far from
destroying the court, such an action would constitute saving it from
its own extremism—and saving the rights we cherish that these
ideologues are stripping away.

_This article first appeared in Fighting Words, a weekly TNR
newsletter authored by editor Michael Tomasky. __Sign up here_
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* SCOTUS
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* Roe v. Wade
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* Voting Rights Act
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* Gun Control
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