By Kurt Walters*
In today’s crowded Democratic primary season, one issue has emerged that would have been unthinkable as recently as 2016: increasing the number of justices on the U.S. Supreme Court.
At least five Democratic candidates have expressed openness to expanding the Court: Senators Elizabeth Warren, Kirsten Gillibrand, and Kamala Harris as well as former Representative Beto O’Rourke and South Bend, Indiana Mayor Pete Buttigieg. But while agitation for reform has increased among the Democratic base, much less ink has been spilled about the historical context of Court expansion and the concrete proposals to carry it out today.
Background of the Debate
The surge of interest in expanding the Court is unsurprising. The current 5-4 majority of Republican-appointed justices exists even though Republican candidates have lost the popular vote in six out of the past seven presidential elections. This new Court majority has shown it is willing to stir controversy while moving significantly rightward, such as in Bucklew v. Precythe, where the conservative majority gave its blessing to capital punishment that causes extraordinary pain.
We can expect this divide between popular will and Court ideology to continue, likely for decades. The oldest Republican appointee is 70 years old, whereas both Ruth Bader Ginsburg and Stephen Breyer are over 80. The disparity may also deepen. The most recently appointed justices are part of the 5-4 conservative majority’s right-most flank.
The idea of expanding the Court has emerged as a viable and popular response, but it has generated intense debate among legal analysts and political practitioners. Some scholars have argued Court expansion would break an equilibrium in which both Republicans and Democrats respect a basic set of ground rules regarding the Court. By that logic, Democrats should do no more than accede to a “new normal” after Republicans violate longstanding norms. In response to the Republican Party’s refusal to hold a vote on President Obama’s final Supreme Court nominee, elimination of the 60-vote threshold for Supreme Court nominees, or running of a historically partisan confirmation process for Justice Brett Kavanaugh, Democrats may adopt similar tactics but do no more.
Many others, including in the popular media, argue instead that this “constitutional hardball” has revealed that “the Supreme Court is now a partisan institution.” A leading legal academic asserts “unilateral disarmament” by Democrats in the face of this regularized norm-breaking would be tantamount to “commit[ing] political suicide.”
Expanding the Supreme Court Throughout History
The first important piece of context for the debate over expanding the Supreme Court is the U.S. Constitution. At no place does the Constitution set the number of justices that should sit on the Supreme Court. Instead, that matter is for the Congress to decide, perhaps as an intentional check by the legislature on the judiciary.
The second is the frequency of the idea and practice in American history. The Court has expanded or shrunk in size seven times throughout its history, often for clearly “political” ends.
When Chief Justice John Marshall wrote Marbury v. Madison, he sat as one of six members of the fully-staffed Supreme Court. President John Adams and a lame-duck Federalist Party congressional majority shrank the size of the Court from six to five in 1801 to limit Thomas Jefferson’s appointments to the bench. The new Democratic-Republican majority under President Jefferson quickly restored the sixth seat and expanded the Court to seven seats in 1807 when Congress created a seventh circuit court.
Congress expanded the Court from seven to nine members under Andrew Jackson in 1837. And thirty years later, during the midst of the U.S. Civil War, President Abraham Lincoln named a tenth justice to the Supreme Court, apparently motivated partly by a desire to ensure the Court would not interfere with Union war tactics.
Congress’s actions to shrink the Supreme Court from ten to seven immediately after the war were even more nakedly partisan. Congress denied President Andrew Johnson the ability to nominate justices who might oppose the congressional Reconstruction plan. President Ulysses Grant increased the Court back to nine seats after it ruled “greenback” paper currency unconstitutional, giving him two extra appointments. The newly constituted Court reheard the case and reversed.
However, the most well-known attempt to shift the size of the Court is President Franklin Roosevelt’s 1937 “court packing” plan, which would have expanded the Court to fifteen seats. While many commentators view Roosevelt’s plan as a failure, it arguably moderated the Court’s anti-New Deal rulings and thus should not be viewed dismissively.
Four Plans to Expand the Court
The first and most straightforward approach to expanding the Court is adding two, four, or six new justices to the Court. This suggestion has been advanced by Professor Michael Klarman of Harvard Law School, among others. This expansion would serve to offset the tarnished confirmations of the most recent two Supreme Court nominees, although critics of this approach, including Senator Bernie Sanders, warn it could unleash a spiral of retaliatory moves by whichever party is in power.
The second option is to reconstitute the Supreme Court in the image of a federal court of appeals. This course of action would increase the number of justices to fifteen or a similar number. Panels of justices would be drawn from this larger group, with an option of en banc review. This plan would not only dislodge the Court’s current reactionary majority, but the panel format also would allow a greater number of cases to be heard.
Third is the Supreme Court Lottery, a more aggressive version of the panel strategy. Daniel Epps and Ganesh Sitaraman have outlined this proposal in a forthcoming Yale Law Journal piece. All federal appellate court judges, roughly 180 in total, would become associate justices on the Supreme Court. Panels of nine justices would be randomly selected from this pool. Importantly, decisions on whether to grant certiorari on a given case would be made by panel members who would not know the ideological makeup of the panel that would hear the case. Thus, this plan would frustrate partisan maneuvering.
Fourth and finally is Epps and Sitaraman’s idea for a “Balanced Bench.” This proposal aims to counteract the effects of partisanship on the Court by explicitly recognizing and institutionalizing partisanship presence. The Court would have ten justices, with five seats allocated to each of the two major parties. Those ten justices would select sets of five additional justices at a time to serve a future, non-renewable one-year term. That selection would operate on a requirement of near-unanimity to ensure that this final set of five justices would be relatively even-handed. However, it is not certain how a Democratic president would fill a vacancy in a Republican seat that arose during her tenure, or how a Republican president would fill an analogous Democratic vacancy.
Whether or not one considers expansion of the Supreme Court prudent, the Court’s history of expansion and contraction should temper concerns. Similarly, the diversity of approaches to expand the Court should caution against knee-jerk opposition.
* Kurt Walters is a 1L at Harvard Law School and an Online Editor of the Harvard Law & Policy Review.