A win-win plan to de-politicize the Supreme Court

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Americans are not particularly interested in how many justices sit on the Supreme Court. They are, however, deeply interested in whether the court is fair. And right now, trust in the court is quickly eroding — not because of any single ruling, but because of a brewing fear that the institution itself is becoming a prize to be seized rather than a referee to be trusted.

That fear is well-founded.

Democrats have repeatedly introduced legislation to expand the court from nine to 13 or even 15 seats, driven by frustration with a conservative supermajority they consider illegitimately obtained. Republicans, for their part, have watched those bills — and Democratic threats to eliminate the filibuster to pass them — and concluded they may need to act preemptively.

The filibuster, it should be noted, has already been eroded by both parties in the service of judicial appointments. What remains of it may not survive this cycle. Each side’s threats justify the other’s. The escalation has its own logic. The end of that logic is a court with 17 or 20 or 30 justices, staffed largely by whoever won the last election, its independence in shreds.

As someone not particularly enamored with the current government, I’ll say out loud what few want to hear: Republicans don’t need to write their own court-packing legislation. Democrats already did it for them.

The Judiciary Act — introduced by progressive Democrats in 2021, 2023 and again in 2024 — would expand the court and give the sitting president the authority to fill the new seats immediately. With a Republican in the White House and a Republican-controlled Senate, passing that bill today would produce the opposite of what its authors intended: a conservative supermajority that would outlast multiple Democratic administrations.

No Democrat, including the bill’s sponsors, would vote for their own legislation under these conditions. The bill they wrote to reshape the court would now reshape it against them. That contradiction is leverage, and it points toward a deal.

The deal is straightforward. Republicans should prepare two bills and make clear that one of them will move. The first is a clean version of the Democrats’ expansion legislation, brought to the floor for a vote. The second is a constitutional amendment permanently fixing the court at 11 justices — with the two new seats filled by the next two presidents, regardless of party. That last point matters: it makes clear that the goal is institutional stability, not locking in the current conservative majority.

The message to Democrats is simple: help us pass the amendment, or watch us pass your bill in our favor.

This is not a bluff designed to humiliate the opposition. It is a genuine offer. A constitutional amendment locking in 11 seats does not necessarily favor either party in the long run, but it removes the court’s size from the political chessboard. No politician who accepts this deal will get exactly what they want, but they will prevent something far worse. They protect a critical institution in our system of checks and balances that is otherwise on the path to destruction.

The objection that a constitutional amendment is too hard to pass misses the point. The difficulty of amending the Constitution is exactly what makes this a durable solution rather than a statute any future Congress can repeal the moment the majority flips in a post-filibuster regime. And the current political environment — in which both parties claim to be defending the court’s legitimacy — may be the best window in decades to actually get it done. Polling consistently shows that Americans want structural stability for the court, even when they disagree sharply about its rulings.

In 30 years of advising institutions on governance, I have watched this dynamic play out on boards, in regulatory bodies, and in markets: once the rules of an institution are seen as negotiable, the negotiations begin. The restraint that kept both sides from acting is itself the casualty — and it cannot be rebuilt from the rubble of the first move. That is where the Supreme Court is headed.

The court has endured for 150 years with a stable bench. It has survived landmark decisions that enraged half the country, most of which were reversed or tempered by subsequent courts or larger circumstances. What it may not survive is becoming the thing both parties are now threatening to make it: a deep keel ripped away from the ship of our republic for temporary partisan advantage.

Our institutions have carried this country through many storms. A stable, independent Supreme Court is indispensable to that continuity, regardless of its current composition, and regardless of which party benefits from its decisions today.

I don’t doubt the sincerity of the vast majority of our leaders in Washington when they say they value the court as a critical link in our system of checks and balances. But we have reason to doubt their political courage. With the right deal on the table, we can instead rely on their survival instincts to get us through the current tempest.

Marc Hodak is a corporate governance expert. He advises global corporations on governance and institutional incentives, and has taught corporate governance at NYU Stern and SMU.

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