Ending fascists’ grip on power not only requires voting them out, but replacing them with the right people.
2026 and 2028 will be particularly impactful election years — not just because one gives us a chance to end Republican control of one or both chambers of Congress and the other gives us a chance to defeat President Donald Trump’s successor — but because Democrats will have a narrow window to make it possible to undo the significant damage to the Constitutional order that Trump’s regime caused. But this requires electing Democrats who understand the gravity of the moment and who are prepared to expend serious political capital to make big changes possible.
2025 has demonstrated that the courts are the last bulwark preventing fascists from completely undoing our form of government and implementing autocratic rule. And for the most part, the courts have done their part. Judges appointed by both Democratic and Republican presidents — including some judges appointed by Trump himself – have ruled against him hundreds of times when he overstepped his Constitutional boundaries. But the fact remains that the Supreme Court has a 6-3 conservative supermajority, which includes three Trump appointees, that has the power to overrule any decision by any district or circuit court judge should they choose to do so.
The John Roberts Court stands out as one of the most conservative courts in US history since at least the Roger Taney Court (which issued the notorious Dred Scott v. Sandford decision that ruled that people of African descent could not be considered U.S. citizens and that Congress could not prohibit slavery in the U.S. territories). An NPR report published in the wake of the 2022 Dobbs v. Jackson Women’s Health Organization ruling that threatened abortion rights nationwide found that the Roberts Court was the most conservative in roughly a century. And that report was published prior to the 2024 Trump v. United States ruling in which all six conservative justices gave presidents absolute broad immunity from criminal prosecution for all official acts. Retired California judge Bill Blum regarded Trump v. United States as the worst Supreme Court decision since Dred Scott v. Sandford.
It’s also highly likely that before Trump leaves office in January of 2029, he could name as many as two new Supreme Court justices, should 75 year-old Samuel Alito and/or 76 year-old Clarence Thomas decide to retire before then. This would mean that five of nine justices on the nation’s final appeals court — an outright majority — would be appointed to lifelong terms by a twice-impeached convicted felon and adjudicated rapist. Should that happen, Trump would join George Washington, Andrew Jackson, William Taft, and Franklin Delano Roosevelt (FDR) as the only US presidents to appoint five or more Supreme Court justices.
Whether that happens or not, the next Democratic administration — should they have a Democratic Congress to work with – has to make expanding the Supreme Court a priority. This should not be considered controversial, as the Court has been expanded multiple times since Article III of the US Constitution established it. Given that the number of Supreme Court justices used to coincide with the number of federal circuits, implementing a similar system today would mean expanding the number of justices from nine to 13, to account for the 11 regional circuits, the federal circuit, and the Washington DC circuit. And all that would require is Congress passing legislation that the president then signs into law.
Even just sparking a conversation about expanding the Supreme Court from nine to 13 justices would serve as an important form of accountability for the Court. When the Supreme Court during FDR’s administration threatened to overturn parts of the New Deal, FDR threatened to appoint two new justices for every sitting justice over the age of 70 who refused to retire. The bill didn’t pass, but the Supreme Court also backed down.
Whether the Supreme Court is expanded or a serious national conversation about expansion causes a shift in its actions, it will require Democrats to speak and act boldly. And both journalists and engaged citizens should ask Democratic candidates for Congress and the presidency three specific yes-or-no questions, in succession, to determine if they have the mettle necessary for our current moment.
3 yes-or-no questions crucial for Democrats to answer correctly
No matter what issue is most important for a candidate, it’s imperative that they understand that should they pass legislation that accomplishes their policy agenda, the conservative Supreme Court supermajority could still toss it out. This means that before even attempting to embark on the arduous process of getting a bill passed through various committees and both chambers of Congress, a candidate should be prepared to deal with the obstacle of six unelected conservative Ivy League alumni serving lifelong terms simply overturning any laws they deem inappropriate. And three questions can show voters if a candidate is ready to seriously address this obstacle.
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The first question: Do you believe that Barack Obama’s third Supreme Court appointment was stolen from him?
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The second question: If yes, do you believe that all 5-4 decisions in which Neil Gorsuch – the justice in the stolen seat — was effectively the tie-breaking vote are illegitimate and should be relitigated?
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The third question: If yes, do you believe that the Supreme Court should be expanded to right these wrongs?
It’s important that these three questions are asked in succession, as each answer will serve as a stepping stone to the next question. And any candidate who answers “no” to either one of these questions should either be written off or persuaded to go on the record as a “yes.”
In regard to the first question, the very obvious answer is “yes,” and anyone who disagrees is either uninformed or is gaslighting voters and should be promptly written off as unserious. We all saw Obama’s appointment of then-DC Circuit Chief Justice Merrick Garland in 2016 get stolen by then-Senate Majority Leader Mitch McConnell (R-Kentucky) in broad daylight. McConnell often bragged about denying Garland even so much as a confirmation hearing, and said that stealing what should have been Obama’s third lifelong Supreme Court appointment was one of the “proudest moments” of his entire political career. Obama never got his third appointment, and Trump instead filled that vacancy with strident conservative Justice Neil Gorsuch.
The second question raises the stakes slightly for a candidate, as saying “yes” would mean acknowledging that Gorsuch's tie-breaking votes on 5-4 decisions were illegitimate. But it’s important to make the distinction between calling a specific appointment illegitimate and questioning the legitimacy of the entire Supreme Court as an institution. And it’s equally important to plainly acknowledge that it’s wrong to steal a Supreme Court appointment from a Democratic president only for a Republican to fill that vacancy with a justice who has a radically different judicial philosophy.
By himself, Gorsuch is not the problem. He was an experienced judge who sat on the 10th Circuit Court of Appeals for more than a decade, and the American Bar Association viewed him as “well qualified.” And despite his conservative bonafides, Gorsuch has also carved out a reputation as a staunch defender of tribal sovereignty and has written official opinions condemning the injustices inflicted against Indigenous tribes and criticizing the torture of detainees at Guantanamo Bay.
However, Gorsuch has nonetheless been a significant factor in the rightward shift of the Court since he was confirmed in 2017. As Scotusblog documented in 2020 (prior to the confirmation of Amy Coney Barrett), Gorsuch was the fifth vote in 10 different decisions in which he was joined by four other conservatives. The underlying implication of that is if it were Garland in that seat rather than Gorsuch, those decisions could have gone the other way. Scotusblog found that in the 2017, 2018, and 2019 terms, there were 19, 20, and 14 different 5-4 decisions, respectively. And those splits were on ideological grounds 74%, 80%, and 92% of the time, respectively. There’s very little question whether those decisions would have been reversed if it were Garland instead of Gorsuch as the fifth vote.
Even after Amy Coney Barrett was confirmed following Justice Ruth Bader Ginsburg's death in September of 2020, shifting the balance of the Court from 5-4 to 6-3, there were still multiple 5-4 decisions in which Chief Justice John Roberts sometimes sided with the liberal minority. One of those cases was in 2022, when the Court ruled 5-4 to overturn Constitutionally guaranteed abortion rights granted by Roe v. Wade. Gorsuch voted in the majority, and while we can never know for sure, it’s safe to assume Garland would have almost certainly been the deciding vote to keep abortion rights in place.
Gorsuch himself is not an illegitimate justice, but his appointment absolutely was, and his record has borne that out. Any Democrat who tries to argue that his tie-breaking votes should be treated with legitimacy is effectively giving Republicans permission to steal more Supreme Court appointments in the future, should a vacancy happen during a Democratic administration and a Republican-controlled Senate. Republican-appointed justices who are in their seventies and eighties could feasibly use that as a gauge to decide when to retire. If a Democratic president loses control of the Senate in a midterm election, a conservative Supreme Court justice could see that as their cue to retire and ensure that their replacement will be of like mind, secure in their belief that a GOP Senate majority wouldn’t allow a Democrat to have their chosen nominee confirmed.
The third question is the most important. A Democratic candidate who acknowledges that Obama’s third Supreme Court appointment was stolen deserves credit. And they would also be correct in saying that Gorsuch’s tie-breaking votes rendered those specific 5-4 decisions illegitimate. But any Democrat who answers “yes” to the first two questions but fails to endorse expanding the Supreme Court is preemptively surrendering to the 6-3 conservative supermajority. Taking a position against court expansion should be seen as a way of communicating that their administration will allow an unelected super-legislature to veto their entire policy platform if it chooses to do so.
When plainly observing the theft of what should have been Merrick Garland’s seat and the arch-conservative record Gorsuch has shown over the past eight years, the only logical conclusion to right the wrongs of the past eight years is to expand the Court. And a president calling for court expansion should be seen not as committing a norm-violating overreach, but as pursuing something no more radical than any other legislative action.
Adding new justices to the Supreme Court doesn’t require a Constitutional amendment, nor does it require litigation to pass judicial muster before it can become official. The Court hasn’t been expanded since 1869, when the US population numbered just under 40 million residents.Today, California alone has roughly as many residents as the entire US did the last time new justices were added to the Supreme Court. Expansion is long overdue, and it’s time for Democrats to get behind it — and for their base to make it clear that their continued support is contingent on it.
Carl Gibson is a journalist whose work has been published in CNN, USA TODAY, the Guardian, the Washington Post, the Houston Chronicle, the Louisville Courier-Journal, Barron’s, Business Insider, the Independent, and NPR, among others. Follow him on Bluesky @crgibs.bsky.social.
