So there’s been some talk today of expanding the Supreme Court. Let me make my position perfectly plain: the Supreme Court should be expanded.
Now, before the claims of “court packing” start coming in, please remember that there is a difference between court packing and court expansion.
Court expansion is rooted in both law and precedent. The last time the court expanded was in 1869, when the current complement of nine justices was established.
Although the Supreme Court does not represent the people, it is important to note that in 1869 there were 37 states and a population approaching 39 million. In 2021, there are 50 states and a population of approximately 331.5 million. More importantly, in 1869 there were 9 circuit courts; today there are 13.
It is entirely within precedent to expand the court to 13 justices.
“Unfair!” some might cry. “It’s not right that one president can appoint four new justices!”
All right, but President Trump appointed three, so . . .
But, how about this for a compromise:
- A law explicitly tying the number of Supreme Court Justices to the number of circuit courts, with the total number of Supreme Court Justices being an odd number.
- The four new justices will be added over the next eight years, one justice every two years between elections, with confirmation required before the midterm and presidential elections (to avoid shenanigans as we saw with the last two vacancies). In this manner President Biden will have a say in his nominee, as well as the voters who elect their Senators, and the voters would also be able to decide if they want President Biden or his successor to nominate a minimum of two Justices beyond 2024. For better or worse (and likely worse, in my opinion) the vote really would be about the Supreme Court.
“But the Supreme Court should have an odd number of justices!”
I agree, but I know there will be some who balk at adding four justices at once. This is my attempt at compromise.
I would also point out that the Supreme Court routinely functions with an even number of Justices, such as 2016-2017 when Mitch McConnell kept the vacancy left by the death of Justice Scalia open for 419 days until Neil Gorsuch was confirmed, claiming that vacancies should not be filled in an election year.
Or consider the 39 days in 2020 between the death of Justice Ginsburg and the confirmation of Justice Barrett, rushed through by Mitch McConnell before that year’s presidential election, claiming the people had spoken two years prior and the fact there was an ongoing election in which citizens had already voted was irrelevant to the nomination.
But I digress.
The point is that the Supreme Court is past due for expansion, and I argued this same thing even while President Trump was in office.
What do you think?
Running In My Head 