Democratic lawmakers are advancing a slate of bills to expand the Supreme Court, cap justices' terms, and restrict emergency orders, proposals that stand no chance of reaching President Trump's desk but could serve as a campaign platform heading into November.
The legislative blitz spans both chambers. Sen. Ed Markey of Massachusetts and Rep. Hank Johnson of Georgia are pressing the Judiciary Act, first introduced in 2021, which would add four seats to the bench and bring the total from nine to thirteen. Sens. Sheldon Whitehouse, Cory Booker, Richard Blumenthal, and Alex Padilla reintroduced the Supreme Court Biennial Appointments and Term Limits Act in July, proposing an 18-year cap on full-docket service with one new justice seated every two years. And a separate pair of measures, the Shadow Docket Sunlight Act from Sens. Dick Durbin and Blumenthal with Rep. Deborah Ross, plus a companion package from Rep. Jamie Raskin introduced in May, would force the court to publish written reasoning and vote counts on emergency orders.
None of these bills can clear a Republican Senate. None will land on the president's desk in this Congress. The term-limits and expansion measures would likely face immediate constitutional challenges, filed before the very justices they target. Newsmax reported the earliest realistic path to passage is 2029, and only then if Democrats sweep both chambers and the White House.
So what is the point? The point is November, and 2028 after that.
The Judiciary Act's supporters argue that thirteen seats would align the court with the thirteen federal appellate circuits. When Markey first unveiled the bill five years ago, he stood outside the Supreme Court building and made the case bluntly.
Fox News reported that Markey declared at the time:
"We're here today because the United States Supreme Court is broken. It is out of balance. It needs to be fixed."
He went further, insisting Democrats "must expand the court, and we must abolish the filibuster to do it." But the bill ran into a wall inside his own party. Then-House Speaker Nancy Pelosi said she had "no plans to bring it to the floor." Then-Senate Judiciary Chairman Dick Durbin, the same Durbin now co-sponsoring the shadow docket bill, said he was not ready to endorse court expansion. President Biden declined to back the measure and instead formed a 36-member bipartisan commission to study the issue. That commission, as AP News detailed, was given six months to examine expansion and term limits before Biden would take a position.
Biden's commission never endorsed court-packing. Pelosi never scheduled a vote. The bill sat.
Five years later, the same proposal is back, repackaged for a midterm cycle in which Democrats need something to energize their base. Former Vice President Kamala Harris and former Transportation Secretary Pete Buttigieg, both described as potential 2028 presidential contenders, have publicly endorsed expanding the court to thirteen seats. The Democratic National Committee went a step further at its summer meeting, where members unanimously adopted a resolution condemning the Supreme Court's use of the shadow docket.
The party's institutional machinery is lining up behind the idea even though Democrats have openly discussed expanding the court for years without producing a single floor vote.
The expansion push has drawn sharp criticism from legal experts across the spectrum. Stanford Law School professor Michael W. McConnell offered a direct assessment when the Judiciary Act was first introduced. The New York Post reported McConnell's warning:
"It's simply an attack on the independence of the judiciary. If congress can add new justices to the court just because they don't like the tenor of the decisions, the court loses its independent stature."
Even Justice Stephen Breyer, a liberal appointee, cautioned that changing the court's structure could further erode public confidence in the institution. Those warnings have not stopped the current round of proposals. If anything, the Democratic caucus has expanded its ambitions, moving from a single expansion bill to a multi-pronged package that includes term limits, ethics mandates, and shadow docket restrictions.
Sen. Whitehouse, who could chair the Senate Judiciary Committee if Democrats retake the chamber, told Bloomberg Law in June that he is focused on the term-limits track. "My term limits bill is where I am," he said, a statement that signals at least some internal disagreement among Democrats about which restructuring path to pursue.
Under Whitehouse's bill, justices would serve eighteen years on the full docket and then shift to a senior role hearing only constitutionally required matters. New appointments would arrive on a staggered schedule, one every two years, designed to reduce the high-stakes political warfare that now surrounds every vacancy. Whether that design would survive a constitutional challenge is an open question the bill's sponsors have not answered.
House Judiciary Committee Chairman Jim Jordan responded to the Democratic push in May by announcing that Republicans would force a vote on a constitutional amendment fixing the court at nine justices permanently. Senate Judiciary Committee Chairman Chuck Grassley backed the nine-justice cap and called the proposed eighteen-year terms a direct threat to judicial independence.
Jordan's approach would take the expansion question off the legislative table entirely. A constitutional amendment requires two-thirds approval in both chambers and ratification by three-fourths of state legislatures, a high bar, but one that would settle the matter in a way no ordinary statute can. The Republican argument is straightforward: if Democrats can add four seats when they hold power, nothing stops the next Republican majority from adding four more, and the cycle never ends.
That argument carried weight in 2021, when then-House Minority Leader Kevin McCarthy framed the stakes in stark terms. He told reporters: "This has got to be the most important because, remember, it's taking over an entire branch of government."
Meanwhile, Justice Alito has confirmed he will stay on the bench, a decision that forecloses one avenue Democrats might have hoped would shift the court's balance without legislation.
The shadow docket proposals address a less visible but increasingly contentious piece of the court's work. Emergency orders, issued without full briefing, oral argument, or published opinions, have drawn bipartisan criticism in recent years for resolving major legal questions with little transparency. The Shadow Docket Sunlight Act would require justices to explain their reasoning in writing and disclose how each member voted.
Raskin's companion package in the House targets the same practice. The DNC's unanimous resolution condemning the shadow docket, adopted at the party's summer meeting, suggests Democratic leaders see the issue as more politically accessible than outright court expansion, easier to explain to voters and harder for Republicans to dismiss as a power grab.
The shadow docket has also figured in recent high-profile disputes between the administration and the court. The Trump administration has pressed the Supreme Court for fast rulings on executive orders, and Justice Kagan has publicly defended the court's independence amid growing political pressure from both sides.
Sen. Elizabeth Warren endorsed the court-packing bill after its 2021 introduction, casting it as a necessary response to what she called Republican manipulation of the confirmation process. The Washington Free Beacon reported Warren's argument at the time:
"Republicans steal power to ram through an extremist, unpopular agenda. Basic protections like Roe v. Wade, supported by 70 percent of Americans, are hanging by a thread."
Warren's endorsement did not move the needle. Biden's commission declined to back expansion. Pelosi refused to schedule a vote. Durbin hedged. The bill died without a hearing.
Now, five years later, the same senators are reintroducing the same proposals, with new co-sponsors, a new DNC resolution, and a midterm election three months away. The pattern is familiar: propose structural changes to the court when out of power, use the proposals to motivate donors and base voters, and shelve them when the political math does not add up.
Democrats have added the ethics code and shadow docket bills to broaden the package's appeal, but the core demand, more seats, shorter terms, less independence for a court that keeps ruling against progressive priorities, has not changed since 2021.
If the goal were governance, these bills would need sixty Senate votes, a willing president, and a path past constitutional review. Democrats have none of those. What they have is a campaign issue, and with November approaching, that appears to be enough.