Should the US Supreme Court be Enlarged?

[_Gunnar]

The Supreme Court Doesn’t Need 9 Justices. It Needs 27

Such a proposal isn’t unconstitutional, nor even that radical

By Jacob Hale Russell

. . .

The battle over court packing is being fought on the wrong terms. 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. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

. . .

The framers would be appalled by the degree to which we have abdicated responsibility for the constitution to a small, homogenous, unelected group. We should be appalled, too. But there is a solution. Enlargement will involve sacrifices by partisans on both sides, as a larger court will be less predictable. For liberals, it may be hard to move past their memories of a court that served them well over a half-century in expanding rights when political branches would not do the same. For conservatives, it may be hard to give up control just as they are finally cementing the victory of a multi-decade campaign to retake the judiciary. But increasing court size should not favor one particular party, and should appeal to all Americans—save perhaps the Supreme Court bar and former clerks.

I found this article to be both thought provoking and well reasoned. I hope others will enjoy it as I did. Please read the whole article and not just the excerpts I posted. I trust that some of you will find it a worthwhile read.

[_MeDotOrg]

I understand the points being made, but I am very concerned about the precedent it sets. Personally I think FDR's court packing scheme was not a high point of his administration. If a an extremist ever gets into power, they can simply stack the court they way they want by enlarging the court.

I bring this up a lot, but there is proposal to limit SOTUS terms to 18 years. With 9 justices, that means a turnover every 2 years. Each President would nominate 2 justices per term.

[_Gadianton]

may not have to. With the new justice basically openly admitting she'll rubber stamp all of the president's most insane orders as well as go with the lie about voter fraud so the pres can win, anybody left in the middle has no choice but to go blue now and make it a landslide, so there is no question. If there's one thing that scares any rational American, it's either party having utter dominance. We'll literally be moving into an era of fascism if the Supreme Court goes red and "all in" to support Trump. But at the same time, some of us would pause at least a little, after sighing breaths of relief, for everything to go blue. Those in the middle can rest their worries that the Democrats will be somewhat limited in what they're able to change, so they are free to run for their lives from the SC + P axis of power and vote blue.

[_subgenius]

So, the apologetics and spin for Biden packing the court (if he wins) begins.
You guys are sad.

[_Themis]

So, the apologetics and spin for Biden packing the court (if he wins) begins.
You guys are sad.

Says the guy doing apologetics to defend republicans hypocritical behavior to stack the court. I said before don't cry when democrats play by the same rules the republicans are to stack the court.

[_Gunnar]

I understand the points being made, but I am very concerned about the precedent it sets. Personally I think FDR's court packing scheme was not a high point of his administration. If a an extremist ever gets into power, they can simply stack the court they way they want by enlarging the court.

But the fact still remains that there is no constitutional prohibition against enlarging the size of the court, no matter which party is in power. The Constitution delegates to Congress the power and the responsibility to decide the size of the court, and it could decide to change that no matter who is in power. There is no way to guarantee against the Republicans deciding to enlarge the court anyway, should Trump be elected, and they somehow also gain a majority in both houses of Congress before end of his term. I wouldn't put it past them to do so at the first opportunity to further solidify the conservative majority on the court. One way to minimize the possibility of any one President unfairly stacking the court to his or his party's unfair advantage would be to pass a law to sharply limit (to no more than two, for example) the number of justices that any one President could add to the court during his term of office. I suspect that such a law would find strong bipartisan support, and I don't think it would require a constitutional amendment.

I bring this up a lot, but there is proposal to limit SOTUS terms to 18 years. With 9 justices, that means a turnover every 2 years. Each President would nominate 2 justices per term.

I like that suggestion, but the big problem with it is that it would be a violation of the Constitution, as it now stands. It would require a constitutional amendment to make that possible, and I severely doubt that particular amendment would have more than a snowball's chance in hell of being enacted. And it doesn't alleviate the problem addressed in the article that only 9 justices in the Supreme Court is not really adequate for today's needs.

[_Gunnar]

may not have to. With the new justice basically openly admitting she'll rubber stamp all of the president's most insane orders as well as go with the lie about voter fraud so the pres can win, anybody left in the middle has no choice but to go blue now and make it a landslide, so there is no question. If there's one thing that scares any rational American, it's either party having utter dominance. We'll literally be moving into an era of fascism if the Supreme Court goes red and "all in" to support Trump. But at the same time, some of us would pause at least a little, after sighing breaths of relief, for everything to go blue. Those in the middle can rest their worries that the Democrats will be somewhat limited in what they're able to change, so they are free to run for their lives from the SC + P axis of power and vote blue.

I have some strong reservations about the extremity of her conservatism, but I doubt that she is merely another mindless Trump sycophant dedicated to rubber stamping "all of the president's most insane orders" no matter how extreme, though she might possibly have tried to give that impression to Trump in order to get his nomination. Whatever else one might say about her, she is obviously no dummy, without a mind of her own, and once she is installed as Justice, and no longer subject to being fired by Trump for any hint of disagreement with him or perceived disloyalty to him, she will probably prove to be less subservient to Trump than he would like her to be--even if he wins the election, and certainly not if he doesn't. I would find it hard to believe that, on some level, she is any less aware of or less disgusted with much of Trump's documented immorality and shady dealings than any other intelligent and well informed woman with her educational background and stature.

I think she is probably a fine scholar and well versed in the law, and over all a decent person and parent. I would be less uneasy about her being added to the court were it not for the fact that the court is already so over balanced to the conservative side. I would rather see a court not so heavily weighted towards one extreme or the other.

[_Philo Sofee]

I understand the points being made, but I am very concerned about the precedent it sets. Personally I think FDR's court packing scheme was not a high point of his administration. If a an extremist ever gets into power, they can simply stack the court they way they want by enlarging the court.

I bring this up a lot, but there is proposal to limit SOTUS terms to 18 years. With 9 justices, that means a turnover every 2 years. Each President would nominate 2 justices per term.

Not if Moscow Mitch stays in power....

[_subgenius]

So, the apologetics and spin for Biden packing the court (if he wins) begins.
You guys are sad.

Says the guy doing apologetics to defend republicans hypocritical behavior to stack the court. I said before don't cry when democrats play by the same rules the republicans are to stack the court.

The Constitution allows the President to nominate a judge for a vacancy in the Supreme Court, no matter when said vacancy occurs. Trump and the Senate did not seek to create more vacancies just to "pack" the court. They allowed for the status quo of 9 justices to prevail for the current term. "Packing" the court is what the Dems seek to do as a continuation of their 2016 tantrum. While provided for by the Constitution, the Dems seek to change the status quo of 9 justices to some other number of justices which would benefit them directly - thus creating vacancies of whatever number they desire (if they hold power to do so).
Even you can see the difference for how the term "pack" is being used here. And while both party's strategy are completely legal by the laws of the land, it is only the Dems that seek to "pack" in the spirit of being butt-hurt for 4 years.

[_Icarus]

Republicans have been gleefully bragging about packing the courts for the past four years, now they're whining because Democrats have floated the idea of expanding the court which is fully within their constitutional authority to do. There is so much stupidity and hypocrisy in this, it is difficult to parse. We've watched as Republicans have uncritically rubber stamped appointees who have little no no qualifications whatsoever, but they were hand picked by the Federalist society for no other reason than their extreme religious beliefs against abortion. Judges with zero experience trying cases, judges that were picked despite no recommendation from the Bar association. With all their whining about "legislating from the bench," which is what Bill O'Reilly said for a decade on FOX, they're clearly the ones intending to do via the courts what they cannot do via the legislature. As Klobuchar said yesterday, they'd never even try to pass half the stuff their religious base wants because it is so unpopular in America that it would ruin their careers. So they leave it up to extremist religious nuts they put on the bench to do their dirty work for them, knowing that with a life time appointment, there are no repercussions for them.

McConnell blocked Obama from appointing judges during his tenure for no other reason other than political. Republicans admitted from the get go they'd block everything Obama proposed no matter if it was for the good of the country. The only thing they care about is their own political power.

The solution would be for the Democrats to expand the court not to just a few seats, but to a few dozen seats. If the court were to expand to say 50-60 seats, the chances of decisions coming down to strictly partisan lines would be far less likely. Right now with just nine judges almost everything comes down to strict partisan lines. 5-4 on just about everything that matters, which the exception of Roberts refusing to throw millions of American off of their health insurance.