A look at the historical evolution of the size of the Supreme Court, and some of the reasons why even progressives ought to be wary about expanding it today
Professor, I usually agree with your side in debates like this, but I wonder if your arguments against (contemporary proposals for) court expansion too lightly bypass the fact that Congress has the power/responsibility to check the Court's excesses, and not just the other way around? The current Court (as you yourself have brought to a lot of people's attention) seems to be aggravating to itself more power, if not formally then practically, by playing fast and loose with procedures and precedents when it suits certain objectives. Certainly I think expanding the court would be a radical option, but one that ought to be in Congress' toolbox if the Court frustrates it in ways that are hard to explain through evenhanded application of the law, and it would be entirely consistent with checks and balances. And I think there is in itself a danger to Congress being too hesitant to exercise that constitutional power, just as there is danger to being too willing to: it serves nobody to further politicise the courts, but if, in the face of a more and more aggressive Supreme Court, it continues to be treated like a third rail to check it, it negates the constitutional structure that allows each branch to hold the others to account.
Aside, because I don't want to just write a pretty long and slightly argumentative comment, I do sort of like the idea of an even-numbered Supreme Court. If the Court splits in halves on a question, maybe it's better to let it percolate around the lower courts a bit and have the Justices find more consensus before imposing a national rule. And if there were 12 Justices each could cover a geographic circuit, and nobody would have to be in the unenviable spot of being Circuit Justice for just the Federal Circuit.
In a serendipitous moment, I just read yesterday David M Kennedy's account of the Roosevelt "court packing." (The book, Freedom from Fear, is really eye-opening and rather different from the stories my father, a firm Roosevelt Democrat, and others have told of the whole New Deal). One of the problems with Roosevelt's plan was the almost sacred status the Supreme Court had in the 30s. That would be less of an issue today. He also tried to push his idea too far, applying it to all Federal Courts.
But as a form of term limits it could work. Roosevelt's plan only called for an additional justice if one who was over 70 refused to retire. If a sitting justice did retire, he would only be replaced-not have a spare added.
Today the age limit could be higher--75? 78? But since it would ONLY click into effect if a elder type refused to retire, it wouldn't necessarily have that round robin effect you worry about. It gets around the problem of term limits on a "lifetime" position.
Congress could simply decide by legislation whether someone new could be considered in the X months before an election. The senate might not have to APPROVE the candidate, but s/he should at least get a full hearing. And prevent the Kavanaugh Problem, the FBI could be REQUIRED to follow up investigating tips once a credible witness raised an issue of prior misconduct that might affect the Senate's choices and should be required to testify under oath as to its findings before confirmation can continue. (With some timeframe to keep it from dragging out indefinitely). Any of these things could benefit EITHER party and might not result in musical chairs.
It could also place limits on the "shadow docket," and on appeals of interlocutory decrees. And it could outline what specifically allows the use of the nationwide injunction. It is supposed to be for things that are emergencies (like Covid stuff) and should be applied only when the injunction does not impinge on state laws and state constitutions unless needed to deal with the emergency. Certainly the overturning of a decades old FDA approval is not an emergency. THAT case needs to go through the normal process of Circuit Court Appeals (including full panel decisions) and then an appeal for cert. And cert should be denied if there isn't a Federal Question regarding constitutionality or a split of authority between the circuits. Not sure how much of that can be accomplished by legislation, but some Congressional Guidelines could help.
Finally, the court may be able to overturn precedent, but should NOT be allowed to ignore a valid standing issue.
Isn't it a bit late to pretend that the ultra-conservative majority on this Court--which decided Dobbs, invented "equal sovereignty of the states" in order to invalidate voting rights law in Shelby County v. Holder and the "Major Questions Doctrine" to invalidate administrative decisionmaking the majority disapproves of--consists of non-political actors calling balls and strikes, rather than political actors imposing policy on all of us? Why is it a good thing to ignore what's really happening?
I am reminded of a speech the former brilliant judge of the SC Cot of Appeals Alex Sanders gave concerning selection of judges. He pointed out that judges are at once selected as blank slates with no personal backgrounds, and also responsive members of the community with strong ties in it; essentially, it is impossible to choose a perfect judge. While many states elect judges, at that time in South Carolina judges were selected by the legislature, and as a matter of fact basically from among their own ranks. Later SC moved to a system where the legislature got to choose judges from among those who nominated themselves, but only from the top three as ranked by the members of the bar. Thus, while politics ultimately awarded the plum, it was only after those who were in the legal business weeded out the rotten ones. Something similar could work in selecting appeals judges and Supreme Court justices: allow the president to nominate, as per the Constitution, but require pre-qualification by vote of practicing lawyers. That might serve to guide selection of justices in the direction of those who apply the law skillfully instead of those who have a strong political bent.
I am somewhat concerned that you write an entire history of the size of the Supreme Court being used for partisan political purposes, followed by recounting how the composition of the Court today has been manipulated for partisan political purposes, and your conclusion is "The manipulation of the Court for partisan political purposes any further, by the party the recent manipulation was used against, will destroy its legitimacy". That plays very close to the current common wisdom of the chattering classes that Republicans are allowed to misbehave but Democrats aren't, even as you declaim that interpretation. Surely the Court lost any legitimacy it could lose due to partisan activity with McConnell's twofer (and Bush v. Gore!), why would it lose any more with partisan retaliation?
Professor, I usually agree with your side in debates like this, but I wonder if your arguments against (contemporary proposals for) court expansion too lightly bypass the fact that Congress has the power/responsibility to check the Court's excesses, and not just the other way around? The current Court (as you yourself have brought to a lot of people's attention) seems to be aggravating to itself more power, if not formally then practically, by playing fast and loose with procedures and precedents when it suits certain objectives. Certainly I think expanding the court would be a radical option, but one that ought to be in Congress' toolbox if the Court frustrates it in ways that are hard to explain through evenhanded application of the law, and it would be entirely consistent with checks and balances. And I think there is in itself a danger to Congress being too hesitant to exercise that constitutional power, just as there is danger to being too willing to: it serves nobody to further politicise the courts, but if, in the face of a more and more aggressive Supreme Court, it continues to be treated like a third rail to check it, it negates the constitutional structure that allows each branch to hold the others to account.
Aside, because I don't want to just write a pretty long and slightly argumentative comment, I do sort of like the idea of an even-numbered Supreme Court. If the Court splits in halves on a question, maybe it's better to let it percolate around the lower courts a bit and have the Justices find more consensus before imposing a national rule. And if there were 12 Justices each could cover a geographic circuit, and nobody would have to be in the unenviable spot of being Circuit Justice for just the Federal Circuit.
In a serendipitous moment, I just read yesterday David M Kennedy's account of the Roosevelt "court packing." (The book, Freedom from Fear, is really eye-opening and rather different from the stories my father, a firm Roosevelt Democrat, and others have told of the whole New Deal). One of the problems with Roosevelt's plan was the almost sacred status the Supreme Court had in the 30s. That would be less of an issue today. He also tried to push his idea too far, applying it to all Federal Courts.
But as a form of term limits it could work. Roosevelt's plan only called for an additional justice if one who was over 70 refused to retire. If a sitting justice did retire, he would only be replaced-not have a spare added.
Today the age limit could be higher--75? 78? But since it would ONLY click into effect if a elder type refused to retire, it wouldn't necessarily have that round robin effect you worry about. It gets around the problem of term limits on a "lifetime" position.
Congress could simply decide by legislation whether someone new could be considered in the X months before an election. The senate might not have to APPROVE the candidate, but s/he should at least get a full hearing. And prevent the Kavanaugh Problem, the FBI could be REQUIRED to follow up investigating tips once a credible witness raised an issue of prior misconduct that might affect the Senate's choices and should be required to testify under oath as to its findings before confirmation can continue. (With some timeframe to keep it from dragging out indefinitely). Any of these things could benefit EITHER party and might not result in musical chairs.
It could also place limits on the "shadow docket," and on appeals of interlocutory decrees. And it could outline what specifically allows the use of the nationwide injunction. It is supposed to be for things that are emergencies (like Covid stuff) and should be applied only when the injunction does not impinge on state laws and state constitutions unless needed to deal with the emergency. Certainly the overturning of a decades old FDA approval is not an emergency. THAT case needs to go through the normal process of Circuit Court Appeals (including full panel decisions) and then an appeal for cert. And cert should be denied if there isn't a Federal Question regarding constitutionality or a split of authority between the circuits. Not sure how much of that can be accomplished by legislation, but some Congressional Guidelines could help.
Finally, the court may be able to overturn precedent, but should NOT be allowed to ignore a valid standing issue.
Isn't it a bit late to pretend that the ultra-conservative majority on this Court--which decided Dobbs, invented "equal sovereignty of the states" in order to invalidate voting rights law in Shelby County v. Holder and the "Major Questions Doctrine" to invalidate administrative decisionmaking the majority disapproves of--consists of non-political actors calling balls and strikes, rather than political actors imposing policy on all of us? Why is it a good thing to ignore what's really happening?
I am reminded of a speech the former brilliant judge of the SC Cot of Appeals Alex Sanders gave concerning selection of judges. He pointed out that judges are at once selected as blank slates with no personal backgrounds, and also responsive members of the community with strong ties in it; essentially, it is impossible to choose a perfect judge. While many states elect judges, at that time in South Carolina judges were selected by the legislature, and as a matter of fact basically from among their own ranks. Later SC moved to a system where the legislature got to choose judges from among those who nominated themselves, but only from the top three as ranked by the members of the bar. Thus, while politics ultimately awarded the plum, it was only after those who were in the legal business weeded out the rotten ones. Something similar could work in selecting appeals judges and Supreme Court justices: allow the president to nominate, as per the Constitution, but require pre-qualification by vote of practicing lawyers. That might serve to guide selection of justices in the direction of those who apply the law skillfully instead of those who have a strong political bent.
AMA question: what recent SCOTUS opinion had an alignment of Justices (either in the majority or dissenting) that you found most unexpected?
I am somewhat concerned that you write an entire history of the size of the Supreme Court being used for partisan political purposes, followed by recounting how the composition of the Court today has been manipulated for partisan political purposes, and your conclusion is "The manipulation of the Court for partisan political purposes any further, by the party the recent manipulation was used against, will destroy its legitimacy". That plays very close to the current common wisdom of the chattering classes that Republicans are allowed to misbehave but Democrats aren't, even as you declaim that interpretation. Surely the Court lost any legitimacy it could lose due to partisan activity with McConnell's twofer (and Bush v. Gore!), why would it lose any more with partisan retaliation?