CommentsSCOTUS-Though it may seem almost passé at this point under our ever-churning news cycle, over the last few weeks, one of the hottest topics discussed in the national news was the issue of “packing” the U.S. Supreme Court.
The moderate and it appears soon to be more conservative leaning Court has people concerned that the addition of a new member would have the effect of striking down the sometimes revered, sometimes reviled Affordable Care Act or even more concerning to many the possibility of overturning, Roe v. Wade. Outside of these palpable and mostly ideological concerns, there are more practical reasons for considering increasing the number of U.S. Supreme Court Justices.
There are many who believe that Nine is a magical number, yet the population of the United States has grown, the number of petitions to the Supreme Court is enormous and though it appears that Nine have served us well for over 150 years, it probably needs to increase at this time. It is notable that the members of the Court don’t usually discuss their workload and they themselves are likely against increasing their own number.
Also, it has been suggested that in order for the court to be brought back to its ideological middle or perhaps even more to the left, the next congress and President should write and pass a bill to increase the number of members that form the Court. Presidential hopeful Joe Biden and his running mate have been peppered by the media with such questions. It is likely that many democrats may want such an act. Vice President Pence recently scoffed at such an idea, but for the rest of us, there may be good reasons to do this.
Supreme Court Ideology
Over the last century, the Supreme Court has had its composite ideology swing back and forth between the so called Liberal and Conservative spectrum. Yet for the most part in the last few decades, the Court has maintained an almost moderate to slightly right political leaning based on its membership. With the passing of the Liberal Lioness Ruth Bader Ginsburg and the current nomination and likely confirmation of Amy Barrett, who appears to be more in the mold of Conservative Antonin Scalia, that ideological leaning is going to likely shift quite solidly to the right.
That of course has many concerned.
In the fifties and sixties, the court mostly leaned to the left, after many years of having a very conservative bend. Much of the change from right to left was due to the eight judicial appointments to the U.S. Supreme Court that FDR had made. Later, Nixon notably had four appointments, Reagan made several appointments including the first female justice. President Clinton had a number of liberal appointments and the shifting has gone back and forth based on opening during the various administrations.
Because of the likely current shift there has been an ample amount of rhetoric. The Democrats were angry that when Antonin Scalia passed away, their moderate choice (via President Obama’s nomination) of Merrick Garland was sidestepped because the Republicans in the Senate wanted the next President to have the pick and in part suggested that the voters have some say. Now, it appears that Republicans are claiming their right to make such an appointment now and the Democrats are urging the appointment to be put off until the election of the next president and they are pointing back at the Republicans for unfair play. The rancor is high across the board.
Some scholars and many Democrats have recognized that there is no constitutional limit to the number of justices on the Supreme Court and it would only require a simple bill by Congress to add more seats and if Joe Biden were elected, the ideological balance could be changed by these appointments. The Republicans believe they have gained the seats fairly through the political process. But considering the fact that many issues in the end are settled by the U.S. Supreme Court, this matter naturally has become extremely contentious and to many, this seems like a reasonable action.
FDR and Packing
This modern idea of packing has its roots in the Franklin Delano Roosevelt Administration. Through FDR’s pressing of his new deal programs, he found resistance with the courts that did not wish to affirm his legislated programs. So, he and his Democratic leaning Congress vocally and publically planned to increase the number of members on the US Supreme Court with the direct intent to put more justices on the Court and ones that specifically were more likely to uphold FDR’s New Deal legislature. Many people credit this with the sharp change in decisions by the U.S. Supreme Court in affirming FDR’s policies where before the Court was not affirming these statutes. Many people believe that the decision in Wickard v. Filburn was changed due to this threat.
So if Justices on the U.S. Supreme Court changed their vote at the suggestion of the Court having more members added by Congress, then this in turn suggests that Justices are concerned about their own power and lack of desire to share their power with more people and it is fair to say they could be sensitive to this issue.
The History of the Court
Once the U.S. Constitution was ratified, and the Judiciary Act of 1789 was signed into law, there were a mere 19 Federal Judges in the United States, which is a tiny fraction of the near one thousand or so today. Each of the 13 states had one and the U.S. Supreme Court had six members, which itself was the only court of appeals in the nation. The Supreme Court Justices would ride circuit and oversee the trial courts from time to time.
From that point, until now various acts have been passed by Congress to change the number of members on the Court first from Six to Five, but then up to the Nine we have today. Congress also provided by statute the creation of the Appellate Courts when it was clear that there was far too much business for the Supreme Court to handle on its own.
Originally, the U.S. Supreme Court was relegated to an office in the basement of the U.S. Senate. Today, it is housed across the street from Congress and next door to the Library of Congress in a temple-like building that was largely responsible for its creation by former Chief Justice Taft who was also former president Taft. The large building houses numerous clerks and secretaries that the Justices rely upon to handle their business.
Personal clerkships are also another interesting factor. It’s not clear when the Justices began to have clerks provided to them, but the number of personal clerks on the U.S. Supreme Court has increased over the years. It appears that the U.S. Supreme Court Justices began without any clerks. Today each has about four. It is well known that the Justices directly rely on these clerks for all research and it is well known that they write many of the decisions for the Justices that employ them. It is also well known that most of the Justices pick clerks that have similar ideologies to their own.
The Practical Reality
It is a simple truth that the number of Judges on the court is probably too small based on a number of factors. As Vice President Mike Pence noted during the sole Vice-Presidential debate, that the current size of nine has been in place for about 150 years. Since then (1870), the population of the United States has gone from over 38.5 million to over 332 million today. The more people means the more litigation, the more cases, the more appeals and the less time to spend on each decision from reviewing applications, to considering the docket and what cases to take up and reject. All of this review takes time and as the populations grows, there is less chance or ability of the Nine Justices to take up the total case load before them.
As noted above, the fact that there are so many clerks and secretaries suggest that there may well need to be more judges. At some point, we should ask ourselves, are we placing too much power in the hands of clerks and not enough power in the hands of those appointed to the Court. The clerks certainly are not investigated by the U.S. Senate before they are set to work in the highest Court of the land. Perhaps to best illustrate this issue could be by suggesting we cut the number of justices in half and doubling the staff. However, I don’t think most people would like that and people would see the need of having more Justices added as such would be more proper.
Now then, it is true that there are Appellate Courts formed to handle most what may be the mistakes or bad decisions of the Federal Trial Courts and whether the U.S. Supreme Court takes a case is generally up to the U.S. Supreme Court itself. There are many times that the Appellate Courts still make mistakes and even glaring ones; in those cases, it is proper, if not necessary for the U.S. Supreme Court to step in. There are also many cases in which there are split decisions between the Federal Circuits which only the U.S. Supreme Court can resolve. Also, there are the many petitions coming from the state Supreme Courts based on federal issues and due to its current size of Nine and even with its army of clerks and secretaries, it is often unable to do so.
It is also important to note that the Justices also have a duty to oversee each Federal Circuit. Right now, there are 11 Circuits and the DC Circuit and Federal Circuit as well. Also, each Circuit varies in size. The First Circuit with four small states (Maine, New Hampshire, Massachusetts, and Rhode Island) is tiny next to the monstrous Ninth Circuit with California, Oregon, Washington State, Idaho, Montana, Nevada, and Arizona. This duty of Circuit oversight is handled by appointing the Justices to oversee the Circuits. As of right now, each Justice oversees one Circuit, and some are assigned to oversee more than one. It would be more practical and more reasonable if there was one justice for each Circuit, one for each the DC Circuit and one for the Federal Circuit, And, if we are honest, there should be two justices appointed to oversee the Ninth Circuit.
It would also probably be practical if not proper for the Chief Justice not to have any circuit assignment to oversee as his position includes so many other aspects to oversee such as the organization of the Court, the FISA Court and as well as other duties that relieving him of the duty to oversee a Circuit might be prove quite beneficial and proper.
The importance of each justice is a factor to consider. Many people revered Justice Ruth Bader Ginsburg as her votes and opinions as well as her life’s story was of particular importance to women. Both her majority and minority opinions often advanced women’s rights. This is true for many others who have been considered giants of the Court such as Hugo Black, Antonin Scalia, or William O. Douglas. However, it’s the relatively small size of the Court that makes these people so important. Though, it is of some need to have Justices be revolutionaries and able to push and develop areas of law, if the court were larger, the consensus would be that much easier to make. The individual Justices would be less important and more capable of overseeing the workload and broader coalitions could be made and kept. Each Justice stepping down would be less consequential and each confirmation hearing would be less of a fight in the Senate and likely more civil.
A Proposed Size?
To be sure, if one is to throw out the first pitch and say the Supreme Court should be bigger in size, the next obvious question would be “how big”?
It was suggested by Alexander Hamilton that largest size be 12. However, I believe the first practical idea is that the number should be odd to prevent ties. Perhaps the greatest reason that the original size of six existed and worked was that the Former Chief Justice Marshall pushed to have all opinions be unanimous, but an odd number is better.
There should be one Chief Justice, so, how many associate Justices should there be. It seems to me that the Circuit Court Assignments as noted above is a good place to look to in order to decide the proper number of Justices. If we were to assume assigning two Justices to the Ninth Circuit and the Chief Justice with no assignment, that would suggest that there should be fifteen Justices total. That would be a substantial increase in the number of Justices, but their total workload would be much lighter. As of my last check, it appears that the Court receives some 10,000 petitions each year. That is more than the Nine can possibly handle and may even make my proposal that the Court be increased to fifteen seem modest. Also, if this happened less importance would be on the clerks and secretaries who make a disturbing number of decisions in this important process.
Would Fifteen be too big? Well, let us consider that the Appellate Courts are sometimes quite large. The Ninth Circuit sitting en banc often has as many as thirteen judges considering any one case before it. So, the U.S. Supreme Court having this many would not be strange at all from that standpoint. In fact, it might seem stranger that a lesser Court would have more judges sitting than the U.S. Supreme Court.
The effect of this increase would be to make the court more representative of the people. There are many now who bemoan the fact that seven of the nine justices are going to be catholic. Some commentators note that Catholics only make 20% of the United States population and thus such an occurrence is out of step with the population, but that is the reality of such institutions. If there was an increase, there would be the opportunity to appoint someone of each race that is not represented, such as an Asian person or perhaps someone of Indian ancestry and be a religious cross section as well. I read one article that noted that when it comes to the appointments on the U.S. Supreme Court, prosecutors are often appointed, but criminal defense attorneys almost never are. This seems like an oversight. A larger court could easily allow for this and other potential goals.
A fifteen-member Supreme Court could split itself in half for two panels to hold twice as many oral argument hearings. There could be two panels of seven to hear cases with the panels being alternated and assignments made by the Chief Justice. He could also decide when an issue was important enough to hold a hearing with the entire Court en banc.
Opinions by a larger Supreme Court would likely be less controversial where only once in a while we might find that the decision is a close 8 to 7 whereas these days, the Court is plagued with too many unsettling 5 to 4 decisions on the most difficult decisions.
How Implemented
An even thornier issue to answer is how to possibly choose the extra justices. No real discussion on an increase can be had unless this little, but salient issue is considered. Any attempt to pass a bill through both houses of Congress, often with different parties in charge of each chamber would be impossible if one of the parties was to control the outcome in the end and the other loses power in the Court. So, some strategic way of making this process seemingly fair to both major parties would be needed, which would also need to square itself with the U.S. Constitution.
Both parties would want to make sure that the court wasn’t packed to the gills with the opposing part in control. The best way might be to add two more justices every four years or simply one each year starting in let us say, 2024. That way, each president gets the appointments, and it is set in the future so that the Presidential election does mean in part the voters choose who gets to appoint. It also means that the vote for who controls both the Senate and President matter. This means there is a little chance involved and one party might get lucky to the other parties’ detriment. At the same time, we would all benefit from a larger U.S. Supreme Court and the Country would be better for it.
(Michael C. Warnken is a good government advocate and political reformer. He has his degree in Ethics and Public Policy and works on cases dealing with Elections and Civil Liberties.) Prepped for CityWatch by Linda Abrams.
