On January 30, 2026, Utah Governor Spencer Cox signed a bill expanding the state’s Supreme Court from five to seven justices. The Republican-controlled legislature passed it on a party-line vote. After filling the new seats, Cox will have appointed five of the seven justices on Utah’s highest court.
This is the same Republican Party that calls expanding the U.S. Supreme Court “unconstitutional,” “radical court packing,” and “a direct assault on our Constitution.”
The hypocrisy isn’t subtle. It’s explicit, documented, and happening right now.
The Utah Power Grab
Let’s be clear about what happened in Utah. This wasn’t about judicial efficiency or modernizing the courts. This was about controlling outcomes.
The timing tells the story:
Five months earlier, in August 2025, District Court Judge Dianna Gibson ruled that Utah must redraw its congressional map, explicitly criticizing it as “partisan gerrymandering.” Republicans are appealing to the Utah Supreme Court.
Before that ruling, the Court had also:
- Blocked enforcement of Utah’s near-total abortion ban
- Limited the Legislature’s ability to alter voter-approved initiatives
In other words, the Court ruled against Republican priorities. So Republicans simply added two seats.
More than 900 Utah attorneys opposed the expansion, warning: “We cannot stand idly by and allow democracy to be so weakened.” They argued the effort would “attack, manipulate, retaliate, and control the Utah judiciary.”
The bill passed anyway: 57-18 in the House, 21-8 in the Senate. Every single Democrat voted against it. All but one Republican voted for it.
Governor Cox signed it immediately.
The Pattern: Republicans Have Been Packing State Courts for Years
Utah isn’t an outlier. It’s part of a deliberate strategy.
Arizona (2016)
Arizona expanded its Supreme Court from five to seven justices in 2016 on a party-line vote. The Republican governor got two additional seats to fill.
State Representative J.D. Mesnard, who sponsored the legislation, admitted the quiet part out loud at a committee hearing:
“I’ll just candidly say if there were [a] different person appointing, I might feel less comfortable.”
In other words: We’re doing this because our guy is governor.
Adding those justices gave Republicans a chance to “entrench a majority in Arizona that will persist long after they ceded the governor’s mansion to a Democrat in 2022.”
Georgia
Georgia expanded its courts to end what was then a majority of Democratic appointees.
The Scope
As Douglas Keith from the Brennan Center for Justice put it: “At the state level, conservatives have been packing their courts for years.”
In 2023 alone, 15 state legislatures considered bills to increase partisan influence in judicial selection, according to the Brennan Center.
Utah’s expansion marks the first time since 2016 that a state has increased the number of justices on its Supreme Court. Republicans are reviving the playbook.
Meanwhile, at the Federal Level…
While Republicans are busy expanding state supreme courts whenever they control the governorship, they’ve introduced constitutional amendments to prevent Democrats from expanding the U.S. Supreme Court.
Senators Ted Cruz and Chuck Grassley have proposed amendments to permanently fix the Court at nine justices, arguing that Democratic proposals would:
- “Erase the legitimacy of the Supreme Court”
- Constitute “a direct assault on the design of our Constitution”
- “Destroy its legitimacy, and guarantee the rulings liberals want”
Mitch McConnell calls it “court packing” that would “destroy” the institution.
Let’s examine these claims.
The Constitutional Reality
Here’s what the Constitution actually says about the size of the Supreme Court:
“The judicial Power of the United States, shall be vested in one supreme Court.”
That’s it. The Constitution does not specify how many justices should serve. Congress has that authority.
In fact, the number of Supreme Court justices has changed six times before settling on nine in 1869:
- 1789: Six justices
- 1807: Seven justices
- 1837: Nine justices
- 1863: Ten justices
- 1866: Seven justices (reduced to prevent Andrew Johnson from filling vacancies)
- 1869: Nine justices (where it’s been since)
So when Republicans claim that expanding the Court is “unconstitutional,” they’re simply wrong. Legal experts have called this argument “weak, transparently political — and most importantly, wrong.”
The Constitution explicitly gives Congress the power to determine the Court’s size. Using that power isn’t radical. It’s constitutional. It’s happened multiple times throughout American history.
The Real “Court Packing”
If we’re using the term “court packing” to mean manipulating the judiciary for partisan advantage, Republicans have been doing it for years:
At the state level:
- Utah: Adding two justices while facing redistricting appeal
- Arizona: Admitting they’re expanding because “their guy” is governor
- Georgia: Expanding to flip the court’s partisan balance
At the federal level:
- Mitch McConnell blocking Merrick Garland for a year: “The American people should have a voice”
- Rushing Amy Coney Barrett through in 8 days before an election: Suddenly urgency matters
- The Federalist Society’s systematic capture of the federal judiciary
Republicans didn’t expand the Court—they didn’t need to. They just stole a seat, rushed another, and spent decades installing ideologically aligned judges throughout the federal system.
Now the Court delivers decision after decision advancing Republican policy priorities:
- Overturning Roe v. Wade
- Gutting the Voting Rights Act
- Limiting the EPA’s regulatory authority
- Granting presidents sweeping immunity
- Allowing unlimited dark money in politics
The Hypocrisy in One Sentence
Republicans expand state courts when they control governorships, but call it “unconstitutional” to expand the federal court when Democrats propose it.
That’s not a principled position. That’s naked partisanship.
Why Court Expansion Is Legitimate
The U.S. Supreme Court has nine justices not because the Constitution demands it, but because Congress set that number in 1869—157 years ago.
America in 1869:
- Population: 38 million
- Number of states: 37
- Federal appeals courts: None (created in 1891)
- Annual Supreme Court caseload: ~250 cases
America in 2026:
- Population: 335 million (8.8x larger)
- Number of states: 50
- Federal appeals courts: 13
- Supreme Court caseload: ~7,000 petitions annually (but they hear fewer than 80)
The country has changed dramatically. The lower federal courts have expanded repeatedly to handle growing caseloads. The idea that the Supreme Court must forever remain frozen at the arbitrary number set in 1869 has no constitutional basis.
More importantly, the current Court has:
- Three justices appointed by a president who lost the popular vote
- Two justices appointed in circumstances the Senate deemed illegitimate when applied to Merrick Garland
- Multiple justices credibly accused of ethical violations
- A 6-3 conservative supermajority despite Democrats winning the popular vote in seven of the last eight presidential elections
Expansion would rebalance a Court that has been fundamentally skewed through procedural manipulation and minority rule.
The Path Forward
Republicans have made their position clear through their actions: Court size should change when it benefits Republicans, and must never change when it benefits Democrats.
That’s not a sustainable approach to democratic governance.
The conversation should be about:
- Whether the current Court is legitimate given how its composition came about
- Whether nine justices make sense for a nation of 335 million people
- How to prevent either party from manipulating the judiciary for partisan gain
- What structural reforms (term limits, ethics enforcement, transparency) would restore public trust
What we shouldn’t tolerate is Republicans expanding courts at every level when it suits them, while claiming expansion is “unconstitutional” when Democrats propose it.
The Bottom Line
Utah expanded its Supreme Court last week. Arizona did it in 2016. Georgia did it. Republicans have been doing this for years at the state level.
They don’t think court expansion is wrong. They think Democrats expanding courts is wrong.
The Constitution allows Congress to set the Court’s size. It’s happened six times. Legal experts across the spectrum confirm it’s constitutional.
The only thing “radical” here is the hypocrisy of a political party that:
- Packs state courts when it controls governorships
- Blocks federal judicial nominees when Democrats are president
- Rushes through nominees when Republicans are president
- Then claims that Democrats proposing the same tactics are attacking the Constitution
If Republicans truly believed that changing court size is illegitimate, they wouldn’t be doing it in Utah. They wouldn’t have done it in Arizona. They wouldn’t have done it in Georgia.
They’d be arguing for stable, apolitical courts with strong ethical rules and term limits to prevent partisan capture.
Instead, they’re expanding courts when it helps them and crying “constitutional crisis” when Democrats suggest the same.
That’s not principle. That’s power.
And it’s exactly why Supreme Court reform—including expansion—isn’t just constitutional. It’s necessary.
Utah’s court expansion is the first state supreme court expansion since Arizona in 2016. The number of U.S. Supreme Court justices has changed six times in American history.