How GOP Court-Packing Could Backfire Spectacularly

Utah's Republican governor just handed Democrats a gift they probably didn't expect. By signing legislation to add two seats to Utah's supreme court over the weekend, Spencer Cox became the latest GOP leader to normalize what was once considered the nuclear option of judicial politics: court-packing.

The move follows a pattern that's becoming disturbingly routine. Utah's supreme court had the audacity to rule against Republican priorities — blocking the state's abortion ban, temporarily halting a law banning transgender girls from high school sports, and finding the school voucher program unconstitutional. The solution? Simply add more justices who'll vote the "right" way.

It's a strategy that would make FDR blush. When Roosevelt proposed adding six seats to the US Supreme Court in 1937, the backlash was so severe it helped shatter his New Deal coalition. The very idea of court-packing became political poison, a norm so strong that even presidential candidate Joe Biden declared himself "not a fan" in 2020.

The New Normal: Packing Courts Like It's No Big Deal

But at the state level, Republicans have quietly torn down those guardrails. Utah joins Georgia and Arizona, which both packed their supreme courts in 2016. That's three packed state supreme courts in a single decade — and barely anyone blinked.

The irony is delicious. Republicans control the most powerful court in America: a 6-3 conservative supermajority on the US Supreme Court that's been aggressively partisan. These six justices ruled that Donald Trump can commit crimes using presidential powers. They've spent Trump's second term neutering lower courts that dare to constrain his constitutional violations.

Yet when Democrats controlled the White House, the same six justices routinely struck down Biden's policies — even when those policies were clearly authorized by federal law.

Constitutional Loophole: Modest Reforms Are Illegal, Nuclear Options Aren't

Here's where it gets weird. The Constitution makes moderate Supreme Court reforms nearly impossible while leaving the door wide open for the most radical option of all.

Take Biden's final-year reform proposals: term limits for justices (supported by 68% of Americans), a binding ethics code, and a constitutional amendment to overturn Trump's immunity decision. The term limits? Almost certainly unconstitutional without an amendment, since justices serve "during good behavior" — essentially for life.

The ethics code? Justice Samuel Alito has already signaled he'd ignore it, falsely claiming Congress has no authority to regulate the Supreme Court "period."

But adding seats to the Court? That's explicitly constitutional. Congress has changed the number of justices multiple times, from as few as five to as many as 10. And here's the kicker: if current justices tried to strike down a court-packing law, they'd likely be outvoted by their new colleagues.

The Precedent Problem

The only thing stopping Democratic court-packing has been political norms — the same norms Republicans are systematically destroying at the state level. When Arizona, Georgia, and Utah Republicans can pack courts without consequence, what principled argument do they have against Democrats doing the same thing federally?

The answer is none. Republicans have essentially written the playbook for how to justify court-packing: claim the existing court is too partisan, add seats, and move on. If it works for state supreme courts dealing with abortion rights and voting maps, why wouldn't it work for a federal Supreme Court that's handed Trump sweeping immunity?

The next time Democrats control both Congress and the White House, they'll have a ready-made argument: Republicans did it first. The precedent is set, the constitutional path is clear, and the political justification writes itself. Sometimes the most dangerous political weapons are the ones you forge for your opponents.