As the baroque, late-empire spectacle of the Supreme Court battle unfolds during this election year, let’s talk about one easy fix that would substantially reduce some of the nation’s dysfunction. The founders, in all their wisdom, decided to put more veto points in our government than any other modern democracy. The Supreme Court is the final way for leaders to stop laws from taking place (or, as may be case in less than a year, trashing duly-passed legal legislation like ObamaCare), and as such has become one of the most contentious and polarizing institutions in the country.
Much of what the founders created isn’t easy to fix. The US Senate was intentionally designed to reward small states with outsized influence. The Electoral College was, too — and the subtext in both was to over-represent the voice of slave states. Neither one can be fixed easily. The Supreme Court is another matter, however, and the President and Senate may decide how many members it contains. Indeed, it hasn’t always comprised nine justices. It started out with six and slowly grew with the country to ten in 1863. The numbers settled at nine three years later. At the time, America’s population was just 38 million.
The two parties didn’t always view the Supreme Court as such a pivotal actor. The parties weren’t ideologically consistent, and the President and Senate didn’t subject nominees to ideological purity tests in the way they do today. Often justices ended up departing significantly in ideological terms from the men who nominated them. The Senate would also typically approve qualified nominees out of deference to the President. The GOP makes much hay about how Senate Democrats rejected Justice Robert Bork in 1987 precisely because it was so rare. (By contrast, a GOP Senate didn’t just reject Merrick Garland in 2016 — they refused to even hold hearings.)
Change came in the past three decades as the parties became ideologically coherent and the Court became critical in preserving or overturning key laws — the right to abortion central among them. Getting a justice on the Court has become increasingly important to governance, and justices hang on as long as possible, exacerbating the sense that each nomination is a life-or-death matter.
Things have reached a point of permanent dysfunction — one that worsens the country’s pathologies. It’s now clear no president will ever be able to place a justice unless their party also holds the Senate. We could easily find ourselves in a situation where years go by with eight or fewer justices sitting on the bench. (In 2016, facing a situation in which they lost the presidency but held the Senate, GOP Senators argued for precisely that.) With stakes so high, no opposing Senate will ever give a lifetime appointment to a 40-something ideologue. Or even a 60-something moderate like Garland.
Adding justices would lower the stakes. A larger Court would reflect greater diversity and life experience. Presidents would be able to place more of them, and as such they wouldn’t represent an existential crisis. It would also reduce the power of any single justice — another important benefit of a body with the final say on the law. A larger, more diverse Supreme Court would gain more legitimacy, especially important in a time when voters hold politicians in such low regard.
A Modest Proposal
Over the past fifty years, presidents have placed 19 justices on the court (assuming Amy Coney Barrett is confirmed this year). That’s an average of 1.5 each four years or three every eight. Expanding the court would give presidents more selections. Any number would be arbitrary, but 15 would represent a substantial increase yet remain a functional number. With fifteen, churn would jump to roughly five justices in any eight-year term. Every year or two one justice would depart and a new justice would join the court. It would become more routine and no single appointment would carry the searing importance a vacancy like Ruth Bader Ginsberg’s has created.
Of course, getting to fifteen would be politically risky and could itself become a political crisis. Were Democrats to jam 2–6 justices through without Republican support, the public would be outraged. Republicans, of course, would retaliate as long as there is constitutional recourse. The solution could easily become the source of a much bigger problem.
So consider this suggestion: raise the number to 15, but appoint four Democratic choices and give the GOP two slots. (According to the constitution, the president would have to nominate them, but would select Mitch McConnell’s two favored candidates). This kind of horse-trading used to be common on the court: the President would negotiate with the opposition’s leader to find a choice that would sail through approval.
Democrats would take an immediate hit because this arrangement would leave the GOP a 8–7 majority. In the long run, it would benefit Democrats, and in the short run it would avoid a legitimacy crisis on the court and prevent the radical rulings we can expect with the probable 6–3 GOP majority of the current court. Indeed, with fifteen justices, it would be far harder to ever create majority who would reliably make radical rulings. Justices are never purely ideological. Most have idiosyncrasies that cause them to rule against their normal allies— we saw it with Scalia, Kennedy, Roberts, and even Gorsuch. (Liberals cross lines even more often.) With fifteen justices, the likelihood of any case collecting eight votes on purely ideological grounds drops substantially.
It would be in the Democrats short- and especially long-term interests to move to fifteen with a one-seat minority. They should begin coordination and develop a messaging plan for why this is the sensible constitutional solution — and one that will ultimately save the court.