Should We Expand the Supreme Court?

Photo by Joshua Woods

More Justices, Less Justice

“Justice too long delayed is justice denied,” according to Dr. Martin Luther King Jr. Increasing the number of Justices would in theory help create a better cross-section of viewpoints. The problem with this notion is that the president gets to appoint them and so if the president has strong political inclinations, then they are likely to choose Justices who reflect that. This is the whole reason why the current administration wants to change the rules.

Having more people sit on the bench would increase turnover on the bench. As with the last issue, because so many new justices would be appointed in a short span of time, from the previous President to this administration, it is perhaps likely that most of the current justices today will all leave in a short period of time too. This would land us right back in the same situation sometime down the road. It is not clear to me if adding justices would increase productivity or harm it. But I would lean toward the idea that it would ultimately slow things down. From my own experiences the more people you include in a decision the longer the discussion takes, so it seems obvious to me that this phenomenon is more likely than not to occur. It would also add more cost to the legal system since now there will be four more Justices, with staff, all looking at the same number of cases.

Is this Non-Political?

The expansion of the court is being pushed for political reasons and is a power grab. The arguments for this are clearly coming from the Democrats’ side of the aisle and if it were the other way around as it has been in the past there would not be a peep about adding to the court. As Siegal puts it: “Court-packing would almost certainly damage, if not destroy, [the Court’s] ability to continue performing these functions by impairing its legitimacy and independence” (Neil S. Siegel, “The Trouble with Court-Packing”).

 The proponents of this move say things like the Republicans stole seats and it is not fair that they have a majority, according to Elizabeth Warren, “[t]his is not the first time this extremist court has threatened, or outright dismantled, fundamental rights in this country. For years, the Supreme Court’s conservative majority—recently supercharged to 6-3—has issued decision after decision that veers away from both basic principles of law and widely held public opinion” (“In Op-Ed, Senator Warren Calls for Supreme Court Expansion to Protect Democracy and Restore Independent Judiciary”). Calling someone who holds conservative values an extremist is completely partisan and is typical of the proponent’s rationale. If you read her continued logic, she bases her assertions on the outcome of the cases and not the validity of the decisions.

The Function of The Court is Not at Stake

The job of a Justice is to try and apply the law correctly or interpret the areas that fall in the grey between them. To label, any one of them as Republican or Democrat based solely on who appointed them undermines the public’s perception of the Court. Those who are trying to use their influence to detract from the Court by saying that the American people no longer trust the Court are in fact the origin of that distrust. Even Senator Warren who claimed to be the great granddaughter of a Native American and was actually a mere 1/1,024 while the average European American is said to be 1/555 Native American, continually claims that the Court is acting outside of what the public wants but clearly has no concept of what the public wants by evidence of her dismal campaign and ever waning relevance. Where is the evidence that this is what the people want? Who’s people?

The idea that everything sacred is in jeopardy is nothing more than fearmongering for a power-hungry few to control another lever of our government. Decisions written now are not permanent; if they were then why are some people complaining about other cases being overturned? So far, the biggest arrow in the quiver has been attacking Dobbs v. Jackson Women’s Health Organization, 597 U.S. (2022), but by my inspection, this case was soundly judged according to the law. It has been the non-stop media blitz advertising this as some sort of attack on the morals of the nation that has confused everyone about the underlying issue. Roe v. Wade, 410 U.S. 113 (1973), was flawed, in my humble understanding of the case and Dobbs, this issue should be handled by the legislatures of the States. Dobbs fixed what a partisan Court did in the past, it eroded nothing. The only possible argument left is that people who live in states that end up not supporting abortion laws (to the extent they prefer), may not be able to afford to move to one that does. Thankfully, California and others have already stepped up to fix that problem too. This is just a distraction. Important matters to our health as a nation are finally being addressed after years of previous Courts punting them to the next decade. From what I have followed about recent cases I am overall pleased. My personal belief is that the media, politicians, mega-rich, and celebrities, who are decrying the current Court are themselves fearful of how an honest Court will handle their misdeeds when it is their turn to be judged.

The Number of Justices was not a Priority of the Founders

I believe that the framers of our Constitution left room for the Court to expand without bounds, either by error or omission, as supported by the lack of interest they showed for the topic. At the time the writers of the Constitution were focused more on the other two branches and until Marbury v. Madison, the Court did not wield the amount of power it does today. However, I have to assume that these men understood when they made the appointments of Justices for life, unlike the other key figures of our government, that a Justice would have a long and lasting impact on the nation. It makes sense to me to do it this way because it gives balance to the shorter terms of the other representatives. Human beings in my opinion are not good at relating to longer cycles because we generally focus on our current issues and have limited life spans. The leanings of the Court have a much longer cycle than the presidency which is a good thing because the case law is built slowly and methodically over time and thus does not suffer as badly from the immediate impulses of the Country. The law of averages says that sooner or later there will be a majority from either side and just like flipping a coin it will all balance out eventually.