How Many Justices Should be on the Supreme Court?

What’s the story?

• The retirement of Justice Anthony Kennedy prompted many liberals to revisit a possible way of thwarting a right-leaning Supreme Court: “packing” SCOTUS.

• The nomination of conservative judge Brett Kavanaugh as Kennedy’s replacement has only heightened calls for court packing.
• As Time explained, “for would-be packers, expanding the court from nine to 11 justices, if and when the Democrats take back executive and legislative power, provides the only opportunity to regain a liberal majority on the court.”

What is court packing?

• The Constitution does not mandate that the Supreme Court have nine justices—Congress could increase that number to 11, 15, or 27.

Is there a historical precedence for court packing?

• Yes. President Franklin Roosevelt’s proposed Judicial Procedures Reform Bill of 1937, which is commonly known as the “court-packing plan.” In it, FDR suggested expanding the Supreme Court to as many as 15 judges, allegedly to make it more efficient. Critics said FDR was just trying to obtain favorable rulings on his New Deal legislation.
• A 1968 article for the Baylor Law Review also detailed “seven occasions Congress has enlarged or diminished the size of the Supreme Court by one or two judges.”

What’s the right number of justices?

• In Time, Jacob Hale Russell, assistant professor of law at Rutgers, writes “Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken.”

“Recent years’ decisions, and the frequency of 5-4 splits, have made it difficult to disagree with the fact that the Supreme Court is a fundamentally political, partisan body.”

• Russell says 27 justices “is a good place to start, but it’s quite possible the optimal size is even higher.”
• In order to avoid partisan stacking, Russell proposes any increase “phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.”

Benefits of a larger court

“Larger bodies have some inherent features that are more democratic and effective,” Russell writes.

• They are more representative, and they can include a more diverse group.
• They can do more work.
• Their splits are less likely to be narrow and therefore arbitrary.
• They have more regular, natural turnover, and any one vacancy would not dominate the political scene as it does today. 

What do you think?

Should Democrats consider the “nuclear option” of court packing? Should both parties consider a gradual phase-in of additional justices? Hit Take Action and tell your reps, then share your thoughts below.

—Josh Herman

(Photo Credit: Phillip Nelson / iStock)