Court-Packing by Democrats Would Violate Constitutional Norms and Threaten Judicial Independence
Source: "Why the DSA Democrats’ Supreme Court agenda should alarm every American | Fox News." September 10, 2026. www.foxnews.com
The Gist
The author argues that keeping the Supreme Court at nine justices isn't just tradition—it's practically part of the Constitution because of how it was set up right after the Civil War. He claims Democrats' refusal to support a law locking in nine justices is a sign they secretly want to add more justices to tilt the Court in their favor, which he says would be a dangerous and illegitimate power grab.
Conclusion
The Democratic Party's (particularly its DSA-aligned wing's) apparent willingness to expand the Supreme Court beyond nine justices represents a radical and illegitimate attempt to reshape American government that should alarm all Americans, because the number nine is constitutionally entrenched through historical practice tied to the Fourteenth Amendment's due process guarantee.
Premises
- The number of Supreme Court justices was fixed at nine through a specific historical sequence between 1866-1869 involving the Fourteenth Amendment and related statutes.
- This historical sequence suggests the number nine is implicitly embedded in the 'due process of law' guarantee of the Fourteenth Amendment.
- Congress's bipartisan rejection of FDR's court-packing attempt in 1937-38 reinforces the norm that nine justices is effectively a fixed, near-constitutional standard.
- House Republicans recently tried to formally codify nine justices via constitutional amendment (H.J. Res. 8), which failed due to near-unanimous Democratic opposition (205 of 206 Democrats voting against).
- Democrats' opposition to fixing the number at nine, combined with their perceived inability to reliably win and hold the presidency, suggests they intend to pack the Court when politically possible.
- Court-packing motivated by partisan advantage (rather than principle) would constitute a radical, illegitimate reshaping of American constitutional government.
Assumptions
- Historical practice and inference from a sequence of 19th-century statutes can establish an implicit constitutional requirement, even though the Constitution's text is silent on the number of justices.
- The DSA (Democratic Socialists of America) and its ideology represent or significantly influence the mainstream Democratic Party's actual agenda on this issue.
- Democratic opposition to a Republican-sponsored amendment fixing the number at nine is equivalent to an affirmative plan to expand the Court, rather than opposition to entrenching a specific number via amendment for other reasons (e.g., process objections, distrust of GOP motives, or preference for flexibility).
- The 1937-38 rejection of FDR's plan constitutes evidence of a durable constitutional norm rather than a contingent political outcome specific to that era.
- Political maneuvering to change Court composition is inherently illegitimate if done by Democrats, implying an asymmetric standard not necessarily applied to other historical Court-size changes (which were also politically motivated, e.g., 1863, 1866).