New Bill of Rights

Rejected category · High topline, low floor; statutory

Supreme Court Expansion

Adding justices draws 39% of Republicans and 62% of Democrats (Marquette, 2026), a Weak floor under every independent measurement since 2019; it also needs no amendment and cannot be written to bind both parties.

Rejected 2026-08-06. A rejection is not a judgment that the issue doesn't matter — it is a judgment that the category cannot pass the full-spectrum test today. The evidence, the test, and the path back are below.

The proposal

The idea is to add seats to the Supreme Court — usually four, from nine to thirteen — for the sitting president and Senate to fill. Democratic-sponsored bills to that effect were introduced in 2021, 2023, and May 2026; none has received a committee vote.1 The Constitution does not fix the Court’s size: Congress set it at six in 1789 and has left it at nine since 1869.2 The only amendment on the subject in Congress runs the other way — a Republican-sponsored proposal to fix the Court at nine.3 The category holds two mirror-image proposals, each carried by one party.

The evidence

Every independent poll since 2019 finds the same shape: a majority of Democrats in favor, a majority of Republicans opposed. The most favorable reading is the Marquette Law School Poll of May 2026, which offers no “not sure” option: 50% favor, 50% oppose — 39% of Republicans, 52% of independents, and 62% of Democrats in favor.4 Support has ranged from 48% to 54% across nine Marquette polls since 2021.5

Democrats: 62% 62% Dem Republicans: 39% 39% Rep Independents: 52% 52% Ind bipartisan floor · 39% (Republicans)
Increase the number of justices on the U.S. Supreme Court — Marquette Law School Poll, 2026

The other readings sit lower:

  • Marquette, October 2024, same wording: 54% favor — 35% of Republicans, 56% of independents, 71% of Democrats — the month before a presidential election.6
  • Pew Research Center, 2023: 46% favor — 27% of Republicans, 66% of Democrats.7
  • YouGov, 2024, with “not sure” offered: 37% support, 42% oppose — 18% of Republicans, 33% of independents, 59% of Democrats.8
  • New York Times/Siena College, 2020, wording naming a party: 57% of Democrats in favor; 89% of Republicans and 65% of independents opposed.9
  • Navigator Research, May 2026, advocacy-commissioned by a Democratic-aligned firm: 40% support — net +27 among Democrats, net −27 and net −18 among the two Republican subgroups it reports (net figures only by party).10

The legislative record matches: no expansion bill has been marked up in any Congress; the fixed-at-nine amendment cleared the House Judiciary Committee 15–8 in June 2026 with no Democratic votes or cosponsors,11 and the Democratic majority blocked floor consideration of an earlier version in 2022.12

The test it failed

The bipartisan floor is 39% (Republicans, Marquette 2026), 27% in the Pew reading and 18% in YouGov’s: Weak under every independent measurement since 2019. Four failure modes apply.

High topline, low floor. The 50–54% Marquette toplines rest on 62–71% Democratic support against 35–39% Republican; Pew’s 46% rests on 66% against 27%.47

Support tracks who holds power. Republican-appointed justices have been a majority continuously since the 1970–71 term, apart from fourteen months in 2016–17 when an eight-member Court was evenly divided by appointing party, so every number above was measured under one regime.4 Within it, Democratic support fell from 71% to 62% and Republican support rose from 35% to 39% between October 2024 and May 2026 (Marquette), after Republicans regained the presidency.64 Ratification takes 38 states over a decade or more — long enough for the sponsoring coalition to find itself on the other side of the rule.

Why an amendment. Expansion needs none. Congress can change the number by statute; the 2021 Presidential Commission on the Supreme Court recorded “widespread agreement among legal scholars that Congress has the constitutional authority to expand the Court’s size.”13 Only a rule that fixes the number requires an amendment, and that is a different proposal.

Symmetry. An amendment authorizing more seats cannot bind both parties equally; the benefit goes to whoever holds the presidency and Senate when it takes effect. A fixed-number rule is symmetric on paper, but its only votes are single-party and, taken alone, it entrenches the majority sitting when it is ratified.

Framings we tested

No wording tested by an independent pollster brings the lower party above 39% (Marquette 2026); “expanding the size of the Supreme Court” reaches 18% of Republicans (YouGov 2024), and wording that attributes the move to one party 6% (57% of Democrats — NYT/Siena 2020).489 “Thirteen justices for thirteen circuits” has not been polled.14 For the fixed-at-nine amendment we found no independent poll with a party breakdown; opposition to expansion (61–72% of Republicans, 20–38% of Democrats) is the closest proxy.47

Two framings clear the bar, and neither is expansion under another name. Fixed terms instead of life tenure draw 73% of Republicans and 87% of Democrats (Marquette, 2026) — “unlike expansion of the court,” in Marquette’s words, “term limits for justices enjoy strong bipartisan support.”4 An enforced ethics code draws 88% of Republicans and 93% of Democrats (Marquette, 2024).6 The demand behind expansion — 55% saw the Court as motivated by politics in October 2024, up from 35% in 20196 — is real, and we have routed it to where both parties already agree: eighteen-year fixed terms with regular appointments in the Term Limits amendment, and an enforceable code in the Ethics amendment.

The path back

We would reopen this category only if all three occur: an independent pollster shows at least 45% support in each party for a size rule written to bind both parties — a supermajority requirement to change the number, or a bare fixed-at-nine rule; that reading is replicated after the Court’s appointing-party majority has changed hands; and a version is introduced with cosponsors from both parties. None has; no path back for expansion itself is identified.

Sources

  1. Judiciary Act of 2021, nine to thirteen justices — H.R. 2584, 117th Congress, GovTrack; Judiciary Act of 2023 — H.R. 3422, 118th Congress, GovTrack; bill “to increase from 9 to 13 the number of justices,” introduced May 4, 2026 — H.R. 8647, 119th Congress (Rep. Al Green), GovTrack; Democratic candidates and members reported campaigning on adding justices alongside term limits — Bloomberg Law, July 8, 2026. ↩

  2. Congress set the Court at six justices in 1789, changed the number several times, and has left it at nine since 1869 — Congressional Research Service, “Court Packing”: Legislative Control over the Size of the Supreme Court (LSB10562). ↩

  3. “The Supreme Court of the United States shall be composed of nine justices consisting of one chief justice and eight associate justices” — H.J.Res. 1, 119th Congress (Rep. Biggs), GovTrack; H.J.Res. 28, 119th (Rep. Dusty Johnson); S.J.Res. 16, 119th (Sen. Cruz); H.J.Res. 11, 117th (Rep. Dusty Johnson). ↩

  4. “Increase the number of justices on the U.S. Supreme Court”: 50% favor / 50% oppose; Republicans 39/61, independents 52/48, Democrats 62/38 (leaners as partisans); n=1,001 adults, forced choice; term limits 73% R / 71% I / 87% D; Republican-appointed justices a majority continuously since the 1970–71 term except fourteen months in 2016–17 — Marquette Law School Poll, May 20–26, 2026, press release; crosstabs. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7

  5. Support for increasing the number of justices between 48% and 54% in nine polls since 2021, from 42% in September 2019 — Marquette Law School Poll, trend toplines, 2021–2026. ↩

  6. Increase the number of justices: 54% favor / 46% oppose; 35% R / 56% I / 71% D; enforce a strict ethics code for justices 88% R / 93% D; 55% see the Court as motivated by politics, up from 35% in 2019; n=1,005 — Marquette Law School Poll, Oct. 1–10, 2024, release. ↩ ↩2 ↩3 ↩4

  7. “Increase the number of justices on the Supreme Court”: 46% favor / 51% oppose; 27% of Republicans and Republican leaners favor (72% oppose), 66% of Democrats and Democratic leaners favor; Republican support 44% under 30 and 13% at 65 and older; n=8,480, July 10–16, 2023 — Pew Research Center, How Americans view proposals to change the political system, Sept. 19, 2023; methodology. ↩ ↩2 ↩3

  8. “Expanding the size of the Supreme Court”: 37% support / 42% oppose / 21% not sure; Republicans 18/70, independents 33/39, Democrats 59/20; term limits 56% R / 89% D; enforced ethics code 62% R / 86% D; n=1,140 adult citizens, July 17–20, 2024 — YouGov, Most Americans support term limits and an ethics code for the Supreme Court; toplines and crosstabs (PDF). ↩ ↩2

  9. “Democrats should not increase the size of the Court”: 58% agree / 31% would increase; Republicans 6% in favor and 89% opposed to more than nine, independents 65% opposed, Democrats 57% in favor; n=987 likely voters, Oct. 15–18, 2020 — Siena Research Institute, NYT/Siena national poll release; crosstabs (PDF). ↩ ↩2

  10. “Adding more justices to the Supreme Court beyond the current nine seats”: 40% support, net +2 overall; Democrats net +27, independents net −1, the two Republican subgroups reported net −27 and net −18 (net figures only by party); n=1,000 registered voters, online opt-in, May 13–18, 2026; Democratic-aligned firm — Navigator Research; cited alongside 74% for term limits in the same survey by Fix the Court, an advocacy aggregator. ↩

  11. House Judiciary Committee ordered H.J.Res. 1 reported 15–8 on June 3, 2026, after a May 21 hearing — H. Rept. 119-732, July 6, 2026, govinfo; no committee Democrat voted for it and the resolution has no Democratic cosponsors — The Federalist, June 3, 2026; the sponsor said he did not expect it to have the votes to pass the full House — Arizona Daily Independent, June 11, 2026. ↩

  12. 2022 attempt to bring H.J.Res. 11 to the House floor, blocked by the then-majority — Rep. Dusty Johnson, release, July 13, 2022. ↩

  13. “Widespread agreement among legal scholars that Congress has the constitutional authority to expand the Court’s size”; the Commission took “no position on the wisdom of expansion” — Presidential Commission on the Supreme Court of the United States, Final Report, Dec. 2021, ch. 2 (PDF). ↩

  14. “Thirteen justices for thirteen circuits” — Sen. Markey, Judiciary Act of 2021 release, April 15, 2021. ↩

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