Do You Want to Save Democracy? Create a Twelve-Justice Supreme Court

8 mins read
Supreme Court of the United States of America

The U.S. Supreme Court poses a clear and present danger to democracy. Just last term, they gutted Section 2 of the Voting Rights Act, making it much easier for states to engage in racially based voter suppression. A few weeks ago, they struck down the CDC’s eviction moratorium, putting millions of Americans at risk of becoming homeless and exacerbating the spread of COVID. And in the dead of night on Sept. 2, SCOTUS gave its blessing to the most restrictive abortion law in the nation, depriving countless women in Texas of their fundamental reproductive rights and setting the stage for the overruling of Roe v. Wade.

And worse, something even more wicked this way comes. SCOTUS is primed to eviscerate gun control laws, ban affirmative action, and do absolutely nothing while states engage in extreme partisan political gerrymandering.

With an entrenched 6-3 conservative majority, is there anything to stop the Supreme Court from methodically executing its anti-democracy agenda? 

All is not lost. A viable solution exists to neutralize judicial tyranny. There is historical precedence for expanding and bringing balance to the Court: adding three new Biden-appointed Justices to create an even-numbered, twelve-justice SCOTUS, with six conservative and six liberal justices. An ideological tie.

One might wonder, is an even-numbered high court even possible? But when the Supreme Court was first established in 1789, Congress provided for five associate justices and one chief justice for a court made up of an even total number of six justices.

More importantly, an even-numbered court could transform SCOTUS. How? The key is that an even-numbered court, split equally along ideological lines, would result in 6-6 tie votes in the most contentious, politically charged cases. That would be a good thing because a 6-6 tie would affirm the lower court ruling and prevent a nationwide precedent from being established. A tie would effectively mean that the court never ruled on the case, thereby promoting judicial restraint and reducing SCOTUS’ impact and influence. 

For the court to render a binding ruling, a 7-5 supermajority would be necessary. Given a 6-6 ideological split, the seven justices in the majority would have to include either one liberal or one conservative justice. An even-numbered court, then, would require bipartisan decision-making, which likely would reduce polarization and foster less ideological decision-making.

Such ideological balance would also make it difficult for the high court to overturn established constitutional rights. If the six conservative justices want to overrule Roe v. Wade while the six liberal justices do not, the tie would mean Roe would be upheld. An ideologically balanced court would promote stare decisis, or adherence to court precedent, which would bring stability to existing constitutional liberties. Creating ideological balance on the court, then, would go a long way to reinforce democracy, not undermine it.

Additionally, making the case for balance on the court would prove a highly effective political strategy because it would blunt one of the biggest criticisms of court expansion proposals—that they are nothing more than attempts at a naked liberal power grab. And, honestly, that is exactly what court packing is about. Democrats in Congress haven’t been shy about wanting to add four justices to create a 7-6 liberal majority capable of pushing through a liberal agenda.  

The problem is that moderate Democrats such as President Joe Biden and Sen. Joe Manchin are strongly opposed to the partisanship underlying court-packing proposals. Polls also show that voters are opposed to court packing precisely because it is about the pursuit of partisan ends. 

The partisan critique has merit. Court packing essentially amounts to judicial gerrymandering. It’s a losing argument. Democrats should give up on court packing, pledge never to use that term ever again, and instead start talking about bringing balance to the Supreme Court.

Arguing for an even number of seats would make the partisanship critique disappear completely. Democrats would be able to honestly say that expanding the court is about bringing stability, promoting judicial restraint, and reducing judicial activism. It’s a genuinely nonpartisan proposal that could have widespread appeal, particularly among nonideological independents and moderate Republicans.

And, in a reverse of positions, by arguing for ideological balance, those who want to keep the court at nine justices could be the ones accused of supporting partisanship. The tables would be turned.

Creating an even-numbered SCOTUS addresses another criticism leveled at court-packing plans—that increasing the number of justices to create partisan advantage would start a never-ending tit-for-tat war in which both political parties will change the number of seats whenever they gain power. However, once the public gets used to an even-numbered Supreme Court, any attempt to change that number may come across as illegitimate and too partisan, and likely lead to vigorous political blowback from voters of all political persuasions. 

At the same time it expands the court, Congress also could enact a procedural rule requiring 60 votes in the Senate to change the number of seats in the future. The Senate could insert a provision that requires a supermajority to change or repeal the 60-vote requirement. Those two rules together would make it procedurally difficult for a political party to muster up enough votes to change the number of seats. 

Another possible objection to an even-numbered SCOTUS is that any ideological balance created in the short term may not last for the long term. If one party wins the presidency in consecutive terms, the president may have the opportunity to appoint two or three justices and once more create a partisan divide on the court. That is a possibility. Law Professor Eric Segall of Georgia State University Law School has proposed a court expansion plan that would establish an even number of justices and also require an equal number of Democratic and Republican appointees. 

Another remedy might be to reinstitute a supermajority requirement to confirm a justice. Such a measure could encourage presidents to choose pragmatic, moderate nominees who would stand a better chance of obtaining bipartisan Senate support. And having many moderate, pragmatic justices sitting on the court could reduce the chances that it becomes ideologically imbalanced. 

Ultimately, while some liberals may be dissatisfied with mere balance and want partisan advantage, the even-numbered court balancing plan is simple, straightforward, and likely to appeal to key politicians and voters. It may be the best chance the Democrats have to rein in SCOTUS and restore democracy.

DemCast is an advocacy-based 501(c)4 nonprofit. We have made the decision to build a media site free of outside influence. There are no ads. We do not get paid for clicks. If you appreciate our content, please consider a small monthly donation.

Reginald Oh is Associate Director of The Loyal Opposition. His primary focus is on issues relating to constitutional law, the protection of vulnerable communities, and the reduction of political polarization in America. A law professor at the Cleveland Marshall College of Law who teaches constitutional law and legal ethics, Reggie’s scholarship is focused on the meaning of equality under the Fourteenth Amendment Equal Protection Clause. His current research focuses on the central role that dehumanization plays in fostering inequality and discrimination, and the possibility for law to counter it.
Reginald is on the Board of Directors for DemCast.

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