Expand the Supreme Court — Why Not?

6 mins read

The death of Ruth Bader Ginsburg caused a great outpouring of grief around the country for the loss of a true giant of law and principle. In addition, it brought back to the surface the outrage many feel for Republicans’ handling of the last Supreme Court vacancy in 2016. 

Now that all but two Republican senators have shown no desire to stick to the purported “principle” they were relying on in denying Supreme Court nominee Merrick Garland a hearing back in 2016, it’s clear that Democrats have to consider bold action to counter Republican power grabs.

Shutting down the government to prevent a vote on a nominee so close to the 2020 election, while theoretically a possibility, has been ruled out by House Speaker Nancy Pelosi as a tactic sure to backfire due to the pain a shutdown can cause.

So unless two Republican Senators can be persuaded to change their minds regarding the propriety of holding hearings so close to an election, what actions can Democrats take?

The most commonly espoused tactic—expanding the number of justices on the Court—can only occur after the election and only if Democrats take control of both the White House and the Senate. Expanding the Supreme Court from its present nine members would be bold—but not as drastic as some make it out to be. (While some advocates argue for establishing term limits for Supreme Court Justices, there is a serious question of constitutionality based on the wording of Article III of the U.S. Constitution.)

First, the Constitution sets no limits on the number of justices who will comprise the bench. Article III, Section 1, of the Constitution states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” As one legal scholar noted, “Court packing is straightforwardly constitutional.”

Second, the number of justices has varied over the years. The Judiciary Act of 1789 established a Supreme Court of six members, but between 1801 and 1869, justices fluctuated between five and ten, usually to align with the number of Circuit Courts of Appeals. When the Circuits Courts were reduced to nine in 1866, justices soon followed suit. The Court has remained at nine justices to the present day.

So let’s consider that hook. There are thirteen appellate federal courts existing today—twelve Circuit Courts of Appeals and the Court of Appeals for the Federal Circuit. Expanding the Court from nine to thirteen members to reflect the number of Circuit Courts would actually be reflective of past tradition, not the opposite.

Politicization of the Supreme Court is regrettable, but it’s not the Democrats who bear the brunt of the blame there. Members of the GOP are professing support for Trump’s upcoming nominee without even knowing who it is.

It is clear that the GOP have been playing politics with judicial appointments and are not taking seriously their duty of advice and consent—to the point of now basically skipping straight to mindless consent.

And let’s take a look at the more recent shape of the Court. Four of the five current conservative-leaning justices were appointed by a president who failed to win a majority of the popular vote in the presidential election. Moreover, three of those four were confirmed by senators representing less than 50 percent of total U.S. population.

It was once a sound theory that the Court would never lag too far behind the prevailing sentiment of the country because the makeup of the Court would turn over regularly. In the 1960s, however, the tenure of justices began routinely exceeding 20 years, meaning that the danger of a Court out of step with the majority of the country is much greater than in the past. The job of the Supreme Court is clearly not to rubber-stamp policies with which they personally agree, yet many glaring examples of constitutional decisions infected with blatantly partisan or even discriminatory views abound. Expanding the Court would lessen the danger of minority-appointed justices having outsized influence over decades of high court jurisprudence.

In the words of Professor Alan Rozenshtein, “Battle is coming. The question is: Do liberals still remember how to fight? Because conservatives certainly do.”

Photo attribution: Alexander Gardner, according to National Constitution Center / Public domain

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