The Constitution says little about the Supreme Court. Much less is written about the Court than either the Executive Branch or the Legislative Branch, both of which are dealt with in great detail. It is as if the framers, themselves, were unsure of exactly how the Court should be constructed and what role it should play. The result has been that, over the years, practices developed and were adopted on both the structure and role of the Court. So, today we have nine Justices and the Court has the power of Judicial Review; the power to review the Constitutionality of legislation passed by Congress and signed by the President. One of the few details about the Court included in the Constitution is that Justices would have lifetime tenure.
One of the major sources of conflict in our nation today occurs when a vacancy on the Court occurs and a new Justice is appointed. The stakes concerning the future of the country are extra-ordinarily high as a result of a new appointee, who can dramatically affect the decisions that are made. There are three major reasons why the stakes are so high:
- there are only nine Justices
- vacancies occur in a random manner
- Justices are appointed for lifetime tenures.
These need to be fixed. There are two things that need to be done; one more easily accomplished than the other.
The most easily accomplished reform is to significantly increase the number of Justices on the Court to at least 13 or, ideally, to as many as 17. This would solve the first two problems in several ways.
- With only nine Justices, the value of any one appointment, and therefore any one Justice’s opinion, is enormous. Increasing the number of Justices would reduce the value of any individual appointment (opinion).
- Increasing the number of Justices would also make the Court more democratic. With the current structure, there are only nine individuals who wield tremendous authority and power over the direction of our country. Reducing the power of any one Justice and spreading the power out over a greater number of Justices will increase the democratic nature of the Court.
- Increasing the number of Justices results in appointments to the Court becoming more frequent. This will have two benefits. Since appointments to the Court will be less rare, they will be less consequential and, therefore, less contentious. Secondly, more frequent appointments will mean the Court will better reflect the will of the public at any point in time.
- Increasing the number of Justices will better able the country to increase the diversity of the Court. When the number of Justices was set at nine (in 1869) it was clear that they would be nine white men. So, through most of the Court’s history, that’s who has been on the Court. In 1967, the first black person was appointed to the Court. In 1981, the first woman was appointed to the Court. And in 2009, the first Hispanic person was appointed to the Court. Still, the majority of Supreme Court Justices remain white men. We need to increase the number of Justices on the Court to have a Court that better reflects who we are as a nation.
However, significantly increasing the number of Justices may make it impractical for all the Justices to hear a case. So, instead, as with United States District Courts, Justices could be randomly assigned to hear any particular case. All Justices should hear the same number of cases each year. An additional benefit would be that the Court could be in session longer so that more cases could be heard each year. Why should the Supreme Court be the only court in the country that is recessed for three months of the year?
Critics deride the idea of increasing the number of seats on the Court as “Court Packing”, a term used when Franklin Roosevelt attempted to increase the number of Justices during the New Deal. Opponents point to the political consequences of increasing the number of Justices on the Court as a reason for not doing it. They argue that increasing the number of Justices is nothing more than rank partisanship. Also, they contend that it has long been the custom of our country to have only nine Justices and so it should not be changed.
To deal with these issues, increasing the number of appointees to the Court needs to be done in a forthright and fair manner. It should be accomplished with two new Justices being appointed every two years until the desired number of Justices is reached. The first two new appointments should occur in 2021.
Increasing the number of seats can be accomplished through the President nominating more Justices to the Court and the Senate approving them. Accomplishing it would also require either modifying or eliminating the filibuster in the Senate.. The second change that is necessary would be more difficult to accomplish.
Ending the lifetime tenure of Supreme Court Justices will require going down the much more difficult path of amending the Constitution. Justices should be appointed for a 24 year non-renewable term. This would have the benefit of, again, reducing the value any single appointment. It would also reduce the randomness of when a seat would open up. It would be more clear when a Justice would leave the Court and when an appointment would occur. Despite the difficulty of ending lifetime tenure for Supreme Court Justices, it needs to be pursued.
The Supreme Court is broken. It is too undemocratic. It poorly reflects the demographics of our nation. And most importantly, there is too much power in too few hands. As a result, the stakes involved in an appointment to the Court are too high, resulting in very divisive and consequential appointment hearings that are filled with conflict.
The framers of the Constitution were largely smart men with good ideas. However, it must be remembered they didn’t do much about the structure of the Supreme Court. The founders, themselves, weren’t sure what to do about that. So, they left it for future generations to figure out. It is past time we did it.
There is some merit to the idea that the SCOTUS should be expanded and justices be limited to one 24 year term. Aside from the points you make, a term limit would remove a President’s incentive to nominate very young, and obviously less experienced, candidates, just to maximize the candidates’ potential terms on the bench. These days, if you are in your late 50s you are almost disqualified from consideration.
One other possible benefit to expanding the number of judges would be that eventually we may get some justices that are not ridged ideologues. Over the past few decades both parties presidents have chosen exclusively from lists of “reliable” candidates provided by their favored advocacy groups. This has the effect of causing the court to reflect only the political extremes of our nation.
The Court’s decisions should include all members, even if the membership is expanded. I understand this may be unwieldy but if there are separate panels hearing cases, then litigants will get different decisions depending on the composition of the panel, which in turn will cause a push for an opportunity to appeal to the full court (as happens in lower courts). An opinion from the full court underscores the finality of the decision, with no second guessing about what might have happened with a different panel. I don’t think this would be impractical, the SCOTUS already manages its caseload by accepting very few appeals. Different justices take the lead on writing opinions. More justices means the work is spread out more and the court could arguably handle more cases.
You correctly state that to deal with the political consequences of this proposed change “increasing the number of appointees to the Court needs to be done in a forthright and fair manner.” However, you then go on to say “it should be accomplished with two new Justices being appointed every two years until the desired number of Justices is reached. The first two appointments should occur in 2021.” A cynic might say that your timeline is exactly what those opposed to “court packing” fear. Presumptive President Biden would be able to completely shift the court’s ideological balance from 6-3 conservative to 7-6 liberal within a single presidential term.
In order to get any kind of broad support for a proposal like this, the transition has to be far enough out into the future that it is not perceived to obviously aid one political party or another. Maybe adding one additional justice over each of the next four decades or even in each of the next 4 presidential terms would work. As you note, the Court has had 9 members since 1869, taking an additional 16 years to expand it to 13 won’t cause irreparable harm. Of course, if the real goal is to just get more liberal judges on the court, then if Biden wins and Democrats control both legislative houses in 2021, they will be able to expand the court immediately without any need for broad support or policy justifications to do so.
Thank you for your thoughts. Extending the time period over which the Court is expanded is probably the right course of action to take. However, if the Senate remains in Republican control and with Biden as President, perhaps this is a time when agreement could be reached in terms of who would be nominated and approved.