Why It Matters

The House Judiciary Subcommittee on Courts convened a hearing on May 21 to examine whether proposals to expand the Supreme Court threaten its institutional legitimacy, putting Republicans squarely on defense over the current 6-3 conservative majority. Republicans saw court expansion as a raw power grab, while Democrats argued the Court is already compromised by what they described as selective confirmation tactics and undisclosed gifts to justices.

The Big Picture

The hearing came days after the Supreme Court's ruling in Louisiana v. Callais, which Democrats argued gutted the Voting Rights Act, renewing calls for structural court reforms. Two bills entered into the record, H.R. 1702 and H.R. 3422, represent competing visions for the federal judiciary. The Trump administration has not publicly endorsed court expansion, and the Republican majority used the hearing to build the case against it.

What They're Saying

Rep. Jamie Raskin (D-MD-8) challenged witnesses to defend Sen. Mitch McConnell's blocking of Merrick Garland's nomination while rushing Amy Coney Barrett through just weeks before the 2020 election. Gene Schaerr, Partner, Schaerr Jaffe LLC, acknowledged the Barrett confirmation was "an exception" to McConnell's stated rule, but argued the Senate was exercising its constitutional authority. But Raskin fired back, saying "If the Senate does it, it's okay."

Democrats also raised Supreme Court ethics issues. Rep. Zoe Lofgren (D-CA-18) cited reporting that Justice Clarence Thomas received more than $2.4 million in undisclosed gifts, while all other justices combined received $248,000 over the same 20-year period. Rep. Henry C. "Hank" Johnson, Jr. (D-GA-4) pressed witnesses on whether a $50 gift ban, which applies to Congress and the executive branch, should extend to the justices. Chair Rep. Darrell Issa (R-CA-48) offered to work with the minority on a gift cap, a notable moment of potential bipartisan common ground.

Political Stakes

The hearing gave Republicans a vehicle to go on offense ahead of any Democratic push for court expansion. William Ross, Albert P. Brewer Professor of Law and Ethics, Samford University, testified that FDR's 1937 court-packing plan failed due to bipartisan opposition, even as Roosevelt held a commanding majority. Republicans repeatedly cited that history to argue expansion lacks political viability. For Democrats, the hearing underscored their core argument that the Court's legitimacy crisis is already real, driven by confirmation politics and undisclosed financial relationships.

Yes, But

Bowie, the lone witness skeptical of Republican arguments, pointed out that Congress has changed the Court's size six times throughout history, and the Constitution does not fix the number of justices. He argued that regulating the Court, including its size, is not just permissible but a congressional duty when the Court exceeds its constitutional role. Raskin also brought up the shadow docket, noting that the Trump administration has won 84 percent of its cases there, compared to losing 60 percent in district courts.

What's Next

Issa indicated interest in a constitutional amendment to fix the Court at nine justices and expressed openness to a hearing on court expansion legislation. Members have five legislative days to submit additional written questions to witnesses.

The Bottom Line

Republicans used the hearing to frame court expansion as a partisan threat to judicial independence, but Democrats shifted the terrain to ethics and the shadow docket, leaving both sides with new ammunition heading into what could be a defining debate over the Court's future.

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