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It’s Definitely Time To Pack The Supreme Court, But For Entirely Practical Reasons


President Trump called his decision to nominate Judge Brett Kavanaugh to the Supreme Court “the most important decision a U.S. President can make.” That is true, but it shouldn’t be. Once considered the “least dangerous branch” of government, the judiciary has taken on more power than the Founding Fathers ever imagined. As a result, the nine justices have gained far more control over American lives than they should have, making each of their nominations an increasingly contentious event.

One solution to this problem is for Congress to do its job and resolve more issues with legislation and constitutional amendments, rather than leaving them up to the least democratic branch of government. But that’s not going to happen any time soon. In the meantime, changing how the Court functions could make it work more efficiently, while calming the roiling political scene that accompanies each new justice’s accession to the bench.

Angry People Make Bad Choices

Many on the Left continue to be disappointed with Trump as president, none more so than those who put the most trust in the courts. Neil Gorsuch’s nomination to the Supreme Court in 2017 angered them, but Kavanaugh’s nomination this month is spinning some folks around so hard that they are able to convince themselves of all manner of bizarre conspiracy theories about the new nominee and the retirement of Justice Anthony Kennedy.

It has also led some prominent voices on the Left — though none in a position of power, just yet — to call for court-packing when the Democrats return to office someday. The idea that more seats should be added to the Court until there are a majority of justices who vote the Democrats’ way is a bad one. As Josh Blackman wrote for National Review last week, “It is not difficult to see how such a plan would irreparably alter the way our polity views the Court: If five justices rule against your favored position, simply add two more who would rule the other way! […] This downward spiral would quickly unravel our polity.”

The idea is not completely out of bounds — the Constitution sets no limit on the Court’s size. But it is a bizarre idea for the party in control of neither the presidency nor the Congress to call for the norm-breaking expansion of the Court. Republicans will reject the idea at first, but if it gains popularity on the Left, what is to stop the Right from agreeing? And, more importantly since they actually have the votes, what is to stop them from doing it right now? In their fury, the Left is normalizing something that will, like the destruction of the filibuster, almost certainly end up harming them more than their opponents.

The politically motivated expansion of the Court is a bad idea, one that will destroy any remaining semblance of the idea that a judge’s job is to rule impartially about what the law says. A Court that is packed by one party, then re-packed again when they lose, then re-packed once more ad infinitum will have no pretense of objectivity. Nor should it: such a politicized Court would be encouraged to take more power from the elected branches of government, because its newest members would have been put there for that explicit purpose.

The Court’s Size Has Changed Before

Politically motivated expansion would be destructive, but not all expansions are the same, nor has the Court always been made up of nine justices. As originally constituted in 1789, it had six seats. It grew to seven in 1807, nine in 1837, and ten in 1863. Every time Congress added a judicial circuit, they added a Supreme Court justice, so the Court expanded with the country. The changes in the Court’s membership were pragmatic, not political, which made sense for a body that was still by far the least powerful branch of our government.

Changes — and attempted changes — that followed were not so non-partisan. In 1866, relations between the Republican Congress and President Andrew Johnson were so bad that they resolved to eliminate Supreme Court seats rather than let him appoint new justices. One seat was already vacant and was eliminated immediately under the Judicial Circuits Act of 1866. Justice James Moore Wayne died the next year, and the Act arranged for his seat to be automatically eliminated too. The Court shrank to eight.

Johnson survived impeachment in 1868, but neither party nominated him for election to a new term and he left office in 1869. With Ulysses S. Grant taking over, Reconstruction was in good hands, and Congress restored one of the two eliminated seats, but not the other, giving the Court the nine seats it currently has. (If you want to get technical, Congress created a tenth associate justice seat in 1870; seats number five and seven remain abolished.)

But that is not the end of the story. In 1937, frustrated with a Supreme Court that repeatedly struck down his New Deal legislation, President Franklin Roosevelt proposed to “fix” the problem by adding seats to the court, which he would then fill with judges who shared his expansive view of federal authority. The proposed Judicial Procedures Reform Act of 1937 would have permitted Roosevelt to nominate a new federal judge for each judge with ten years’ service who did not retire after turning 70 — up to a maximum of six new seats on the Supreme Court and two each on any lower court.

In 1937, there were six such justices on the Court, which meant the measure would have allowed Roosevelt to appoint 40 percent of the expanded Court at once. Most Americans, though, even those who supported Roosevelt for reelection the year before, thought the bill went too far. Democrats held 76 out of 96 Senate seats, but the Senate voted 70–20 to send the bill back to committee, where the court-packing section was deleted.

Roosevelt eventually got what he wanted. By the end of his second term he made five Supreme Court appointments. But the Senate had proved its point, too — expanding the Court for ideological reasons was out of bounds, even for a president of their own party whom they supported in every other area of legislation.

The Court Is Too Small, Though

In all of this madness over forcing the Court to one political ideology or another, however, there is a good point being made: the Supreme Court is too small. For one thing, the country has grown tremendously since the Court’s membership was last expanded in 1869. America’s population in 1870 was 38 million. In 2010 it was 308 million, and the Census Bureau’s most recent estimate from 2017 is 325 million. There are 8.5 times as many Americans and the same number of Court seats.

More importantly to the Court: there are more laws than there used to be and, consequently, more legal disputes. In 1789 or even 1869, the federal government made a small impact on the average American’s life. Since then, the kind of laws Roosevelt wanted to pack the Court to uphold have multiplied. With that explosion of federal law and regulation comes a vast increase in federal litigation. The Courts of Appeal resolve these as best they can, but if the Supreme Court does not hear a case, the result is often one that leaves one circuit contradicting another in interpreting a given law. This means federal law is not uniform across the country. The Supreme Court’s most important job is to resolve such circuit-splits. But with limited manpower, they cannot possibly keep up with it all.

From a political perspective, the Court’s small size has the troubling effect of making each justice’s nomination an event of apocalyptic proportions. Replacing one Republican appointee with another, as Trump is doing with Kavanaugh, has provoked widespread wailing and gnashing of teeth. Attempting to replace a conservative with a liberal, as Obama tried to do in 2016, ground the process to a halt altogether. Should Trump have the opportunity to replace either of the octogenarian Clinton appointees on the Court, paroxysms of rage will sweep the Left like nothing in the history of court appointments.

Why? The fault is two-fold. First, Congress has ceded too much control over our lives to the courts. Expanding the Court will not stop that, but it won’t make it worse, either. The other reason, though, is that with so few justices, each vote is all the more important. More members would dilute the influence of each one. Court-watchers and politicos would still get excited, just as they do over appellate court nominations, but regular folks could relax a little knowing that each nomination is not a make-or-break affair for their favorite issue.

Expand It, But Gradually

Even if you agree to all that, it still leaves the problem of court-packing. Any expansion of the Court will be treated — correctly — as a grant of power to the party controlling the White House. Expanding the Court to thirteen justices this year or next would be a political disaster, just as Roosevelt’s attempted power-grab of 1937 was.

The expansion would have to be gradual, spaced out over a generation. If Congress acts soon, the tenth justice could be added after January 20, 2021, with three more new seats spread out over the next few years in 2025, 2029, and 2033. This would ensure that the benefit does not automatically accrue to one party, since the winners of those future elections are unknown. Having the four picks spread over four presidential terms would also mean that they would almost certainly be divided among multiple political parties. Democrats last won more than three straight elections in 1948; Republicans have not done it since 1908. Since presidential term limits were added to the Constitution, only once has a party won even three elections in a row.

Dividing the appointments this way makes it clear that the goal is making the court more efficient, not advancing one party’s agenda. Having the winner of each election pick a justice, even as each justice’s vote becomes less important, will also remind the electorate of one of the president’s most important duties, and will hopefully make them consider how much power they are putting into the chief executive’s hands. By the end of the process, a larger Court will lessen the impact of each nomination and make it more capable of performing its duties, all while maintaining the tradition of keeping partisan politics out of the debate over the Court’s size.