 | Some readers of my post on "Leveling a Tilted Court" (see below) asked if my call for increasing the number of justices on the court amounted to an endorsement of "court-packing." Opponents of Franklin Delano Roosevelt's Judicial Procedures Reform Bill of 1937 derisively called the critical purpose of that bill "court-packing." The bill allowed Roosevelt to appoint a new justice for each justice over 70 and a half years old. Although the bill was couched as a measure to improve the court's functioning with younger justices Roosevelt's proposal was not about age. |
Opponents did not object because it would have increased the number of younger justices. Rather, they objected because his proposal would have permitted him to appoint justices more favorable to his economic proposals. And as planned by Roosevelt, court-packing means adding justices to the court for the express purpose of receiving favorable decisions.
These considerations show that the negative view of adding more justices to the court is that it promises to make court decisions less fair, that is, likely to favor one side consistently. As I have outlined below, adding more justices to the court would make the court decisions more honest and less predictable. One way of ensuring that the public appreciates the court's growing fairness is to add even more justices from the list of "approved justices" Trump received from the Federalist Society. Additional justices, not recommended by the Federalist Society, could be added for balance. And if increasing the number of justices needed to balance the court results in a Supreme Court of 23 or more, so be it.
These considerations show that the negative view of adding more justices to the court is that it promises to make court decisions less fair, that is, likely to favor one side consistently. As I have outlined below, adding more justices to the court would make the court decisions more honest and less predictable. One way of ensuring that the public appreciates the court's growing fairness is to add even more justices from the list of "approved justices" Trump received from the Federalist Society. Additional justices, not recommended by the Federalist Society, could be added for balance. And if increasing the number of justices needed to balance the court results in a Supreme Court of 23 or more, so be it.
Leveling a Tilted Court
September 28, 2020
cales of Justin published February 14, 2018 by Steve Nease politicalcartoons.com Republicans have biased the Supreme Court and the federal judiciary. That is, Republicans used their control of the Senate to subvert accepted practices for confirming judges. Contrary to accepted practices, Republicans confirm judicial candidates who say that they will judge cases according to conservative orthodoxy, regardless of the fallout for society. Previously, the Supreme Court tended to weigh the outcomes of their decisions for society, along with legal principles. Amy Coney Barrett, the latest Republican nominee to the Court, has expressed a willingness to disregard stare decisis. Stare decisis is the legal principle that allowing a flawed decision to stand may be better for the country than upsetting the legal system with continually changing rulings.
During the Obama, Administration Republicans failed to confirm 69 of his picks because the candidates did not affirm conservative legal principles. Republicans have confirmed 194 of Trump’s judicial appointments, including three found unqualified by the American Bar Association. Most importantly, Republicans refused to consider Obama’s pick for the Supreme Court, Merrick Garland. Their justification for ignoring their duty to consider a Supreme Court nomination occurred within a year of a Presidential election. They claimed consideration of the Garland nomination was too close to a Presidential election. Donald Trump’s confirmation of two Supreme Court justices, and likely confirmation of a third, will tilt the Court to the far right for at least a generation.
During the Obama, Administration Republicans failed to confirm 69 of his picks because the candidates did not affirm conservative legal principles. Republicans have confirmed 194 of Trump’s judicial appointments, including three found unqualified by the American Bar Association. Most importantly, Republicans refused to consider Obama’s pick for the Supreme Court, Merrick Garland. Their justification for ignoring their duty to consider a Supreme Court nomination occurred within a year of a Presidential election. They claimed consideration of the Garland nomination was too close to a Presidential election. Donald Trump’s confirmation of two Supreme Court justices, and likely confirmation of a third, will tilt the Court to the far right for at least a generation.
Now, Trump and his Senate majority are rushing to confirm Barrett to the vacancy following the death of Ruth Bader Ginsburg. Barrett’s nomination, and probable confirmation, is occurring in the middle of a Presidential election. To counter Republican further tilting the federal judiciary toward conservatism, some Democrats suggest reforming the judiciary. Specifically, many Democrats indicate that Congress should increase the number of Supreme Court justices from 9 to 11 to offset Trump’s two illegitimate Court appointments. Other Democrats raise two counterarguments against increasing the number of justices.
Some Democrats argue that changing the number of justices for political purposes de-legitimizes the Court. Because of Senate Republicans packing the Court with their appointees, the Court has already been de-legitimized. Other Democrats contend that if Democrats add new justices that favor liberals, Republicans will respond by adding more of their justices to the Court. Adding more justices to the Court, however, would bring the size of the Supreme Court in line with the high Courts in the rest of the industrialized world. For example, the average number of judges sitting on the high courts of the original members of the highly industrialized Organization for Economic Co-operation and Development (OECD) countries is 16.
In 1789, when Congress established the Court, there were six Justices. White adult males in the U.S. numbered about 800,000. White women, slaves, and freed nonwhites did not typically bring cases to the Supreme Court. With nine justices, over 330 million people, the Court hears between 100 and 150 cases out of 7,000 appeals per year. In the rest of the OECD countries, the number of justices on high courts is correlated with the population. In addition to its size, the U.S. population is strikingly diverse. Besides having a high court able to serve a large population, the court’s legitimacy would be strengthened if it represented the diversity of the population it serves.
If Congress increased the number of justices, the Court would follow the practice of other federal courts and use a panel of justices randomly selected from the total number of justices. The Court could hear a more significant proportion of its 7000 petitioners – instead of the small proportion of 100-150. Also, increasing the number of justices on the Court would help people see the Court as equitable. Replacing one-ninth of the Court inevitably creates a political upheaval. If Congress increased the size of the Court, the importance of anyone justice would be reduced. Moreover, if the panel hearing a particular case were randomly selected, then the political orientation of any Justice would be of less importance than it currently is.
If Congress increased the number of justices on the Supreme Court in a prudent manner, it would alleviate the sense that the Court favors either one side or the other. Of course, because the Court is a political institution, like the rest of the government, such charges can never be eliminated. But, as it now stands, decisions against a Democratic Administration because the expected make-up of the Court has six conservative justices will be suspiciously viewed. Such suspicions will undermine the legitimacy of the Court and thus render it ineffective. Simply adding one or two more Justices with also be viewed with distrust by conservatives.
It is essential to introduce expanding the size of the Supreme Court in the context of federal judicial reform. Congress should increase the size of the Court from nine to eighteen to twenty-seven. Later, as circumstances change, Congress could increase the size of the Court to 60, 70, or more. Also, as part of the same legislative package, Congress could increase the size of the entire federal judiciary to facilitate the use of random panels of judges.
The Supreme Court is a political body and always will remain so under the Constitution. But the Court does not have to favor one side or the other. Trying to select justices who will be impartial was always folly and made even more so with a small number of justices. Increasing the representation on the Court but randomly selecting the justices assigned to a given case will not make the process entirely fair, but at least it will provide both sides with a chance. And in so doing, it will restore some legitimacy to the Court. Most people agree there are turbulent times ahead. The sooner we consider the Court legitimate, the better.
Some Democrats argue that changing the number of justices for political purposes de-legitimizes the Court. Because of Senate Republicans packing the Court with their appointees, the Court has already been de-legitimized. Other Democrats contend that if Democrats add new justices that favor liberals, Republicans will respond by adding more of their justices to the Court. Adding more justices to the Court, however, would bring the size of the Supreme Court in line with the high Courts in the rest of the industrialized world. For example, the average number of judges sitting on the high courts of the original members of the highly industrialized Organization for Economic Co-operation and Development (OECD) countries is 16.
In 1789, when Congress established the Court, there were six Justices. White adult males in the U.S. numbered about 800,000. White women, slaves, and freed nonwhites did not typically bring cases to the Supreme Court. With nine justices, over 330 million people, the Court hears between 100 and 150 cases out of 7,000 appeals per year. In the rest of the OECD countries, the number of justices on high courts is correlated with the population. In addition to its size, the U.S. population is strikingly diverse. Besides having a high court able to serve a large population, the court’s legitimacy would be strengthened if it represented the diversity of the population it serves.
If Congress increased the number of justices, the Court would follow the practice of other federal courts and use a panel of justices randomly selected from the total number of justices. The Court could hear a more significant proportion of its 7000 petitioners – instead of the small proportion of 100-150. Also, increasing the number of justices on the Court would help people see the Court as equitable. Replacing one-ninth of the Court inevitably creates a political upheaval. If Congress increased the size of the Court, the importance of anyone justice would be reduced. Moreover, if the panel hearing a particular case were randomly selected, then the political orientation of any Justice would be of less importance than it currently is.
If Congress increased the number of justices on the Supreme Court in a prudent manner, it would alleviate the sense that the Court favors either one side or the other. Of course, because the Court is a political institution, like the rest of the government, such charges can never be eliminated. But, as it now stands, decisions against a Democratic Administration because the expected make-up of the Court has six conservative justices will be suspiciously viewed. Such suspicions will undermine the legitimacy of the Court and thus render it ineffective. Simply adding one or two more Justices with also be viewed with distrust by conservatives.
It is essential to introduce expanding the size of the Supreme Court in the context of federal judicial reform. Congress should increase the size of the Court from nine to eighteen to twenty-seven. Later, as circumstances change, Congress could increase the size of the Court to 60, 70, or more. Also, as part of the same legislative package, Congress could increase the size of the entire federal judiciary to facilitate the use of random panels of judges.
The Supreme Court is a political body and always will remain so under the Constitution. But the Court does not have to favor one side or the other. Trying to select justices who will be impartial was always folly and made even more so with a small number of justices. Increasing the representation on the Court but randomly selecting the justices assigned to a given case will not make the process entirely fair, but at least it will provide both sides with a chance. And in so doing, it will restore some legitimacy to the Court. Most people agree there are turbulent times ahead. The sooner we consider the Court legitimate, the better.