Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, July 30, 2018

Expand the size of the Supreme Court?

A few weeks ago I saw an article in Time entitled "The Supreme Court Doesn't Need 9 Justices. It Needs 27." The article, written by Jacob Hale Russell, assistant professor law at Rutgers, argues that the "institutional design" of the Supreme Court is "badly broken," and that a larger Court that operated more like the courts of appeal, would have many advantages.  Among the advantages:  hearing more cases, reducing the influence of any single justice (or any single retirement), and reduce the politicization of the Court.

When I first heard about this idea, I thought that it was terrible.  Upon further reflection, however, I do think that Prof. Russell makes some excellent points.  Nonetheless, I don't think that his idea would work, for several reasons.  First, it would be difficult to manage.  I could see a larger Supreme Court take a lot of cases en banc.  The Supreme Court gets the tough cases--the hardest ones to resolve.  It gets the cases that split the federal circuit courts.  It is often the hard cases in the circuits that go en banc (before heading to the Supreme Court).  So a docket of the hardest cases means that justices would have significant panel work, and then significant en banc work.  I don't think that they would like that set-up.  Second, I don't think we can reduce the politicization of the Court until we change how we view the Court.  Prof. Russell has this great paragraph in his article:

Our framers’ conception of constitutional interpretation was far more complicated, messy, and democratic. Constitutional interpretation was seen as fundamentally in the hands of the people, not of courts, much less of nine unelected justices, as Larry Kramer and others have cogently demonstrated. Judicial supremacy, the idea that the court is the ultimate interpreter of the Constitution, took off later, arguably not gaining wide acceptance until the past half-century. In that transition, we the people abdicated our constitutional role—creating and interpreting fundamental rights as part of an ongoing process—to a non-transparent, non-democratic, non-representative body of nine. That is dangerous: we are taught, from our earliest civics courses, to revere the court as higher, more “supreme,” and less subject to the whims of politics—despite the increasingly close splits and increasingly frequent reversals of precedent, the political maelstrom surrounding each nomination, and the fact that it is just one of several co-equal branches of government. We have been lulled into believing that the Supreme Court possesses oracular powers to divine the Constitution’s meaning in a way the rest of us can’t.

Until this view changes, the Court will be political.  Sure, more justices would reduce the influence of any one justice and make vacancies less of a big deal, but they would still be significant, especially if cases frequently went en banc.  Each justice would matter--both for the vote to take a case en banc and for the ultimate resolution of the case.  Furthermore, while justice (and federal judges) are unelected, their selection often plays a big role in federal elections.  I know of people who voted for President Trump specifically because they believed he would pick good judges (and justices).  I suspect that the current Supreme Court vacancy will play a big role in the mid-term Senate elections too.

Still, as Prof. Russell points out, Congress has the ability to expand the size of the Court.  Only time will tell if Congress ever acts on that authority.

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