Court Packing Is The Way To Save The Court From The U.S. Senate

We need a few more justices to restore balance to the process.

Supreme CourtThe Senate confirmation process for Supreme Court nominees is broken. “Borked,” if you will. It doesn’t matter who broke it: I say Garland, you say Gorsuch. Either way, the Senate has shown it is completely unable to look past the politics of the nominees and make a fair assessment of their judicial qualifications.

We know why. One Supreme Court appointment can lurch our country to the right or the left. At this point, it would be malpractice for either party to confirm a nominee who might frustrate their party’s political agenda for the next 25 years.

The way to fix this is to nerf the power of any individual appointment. In order to do that, we need more Supreme Court justices. A lot more. Enough justices that the divine timing of death and retirement does not create a political crisis for the party out of executive power.

The Constitution does not require nine Supreme Court justices. In fact, the Constitution is silent on how many judges should be on the Supreme Court. We’re at nine because of the Judiciary Act of 1869. Maybe we’re due for an update?

The lower courts handle things differently. The “progressive” Ninth Circuit Court of Appeals, the largest circuit court, operates with 29 judges. The influential D.C. Circuit has 11. The “conservative” Fifth Circuit Court of Appeals has 17 active judges. The number nine holds no mathematical magic.

At the circuit court level, a three-judge panel is assigned to each case. Generally, it’s a random wheel; all federal circuits use some kind of random assignment structure to create the appearance of neutrality. The three judges render their ruling. If the parties don’t like the panel’s decision, they can seek rehearing “en banc.” If en banc rehearing is granted, the full court will look at the case and render an opinion.

A packed Supreme Court could similarly hear cases in three-judge panels, at least initially, with the possibility of a party seeking en banc review. This would allow the Court to take more cases. And while you’d surely see a lot of 2-1 panel rulings, it would be a rare day that an “en banc” rehearing resulted in a 10-9 split along “party lines.” Most Supreme Court cases are too complicated to break so cleanly.

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“Court packing” gets a bad rap, mainly because Franklin Delano Roosevelt tried to do it in order to bully the Court into authorizing the New Deal. The Judicial Procedures Reform Act of 1937 would have given Roosevelt the authority to appoint six new Supreme Court justices, and it went down in flames.

Partisan court packing is the next logical escalation now that the GOP has changed the filibuster rules in order to install Neil Gorsuch in the seat the Republicans stole from President Barack Obama. The Democrats will likely be back in power (someday), and on that day they’re unlikely to just sit there and watch someone they perceive to be an illegitimate justice destroy women’s rights and gay rights and whatever else with a bunch of 5-4 decisions. If you really think court packing won’t be on the table, you have no idea how much liberals value civil rights.

The thing about going “nuclear” is that it leads to mutually assured destruction.

But court packing doesn’t have to be partisan, and if we do it right it will fix our whole pathetic confirmation process. Let’s say we had a bipartisan committee come up with five “conservative” justices and five “liberal” ones to add to the Court. That would swell its numbers to 19, yet preserve the current balance of conservatives and liberals. Now let’s say that Ruth Bader Ginsburg or Anthony Kennedy leaves the Court, and President Trump gets to nominate the replacement.

Do you really think we’d see Senators going to the mattresses over the nomination?

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It wouldn’t make any sense to filibuster a qualified candidate, or refuse to hold a hearing on a president’s choice, because over the course of 19 people evolving and dying and retiring, no one justice would be indispensable. No one person would hold the future of, say, voting rights on their aging shoulders. The Supreme Court would still have a lot of power, but the individual justices would have less power. Which would be kind of nice since they are unelected, unaccountable, and appointed for life.

More justices would also lead to more diversity on the Court. Not just in terms of identity politics — though it would be cool if the Supreme Court was big enough to encompass a full range of the ethnic, religious, and orientation backgrounds experienced in our pluralistic society — but in terms of diversity of thought. With Gorsuch confirmed, we have nine justices who went to two law schools (Harvard or Yale). We’ve got basically three judicial philosophies represented (originalists, not, and whatever Anthony Kennedy is feeling that day). We know what Gorsuch means for women’s rights in this country, because the math is not hard to see.

In the immortal words of Kermit the Frog: we need more dogs and cats and chickens and things. If we had more people from more schools of thought, it’d be a lot harder to say, “Well, we know how the Republican justices will vote on abortion. We know how the Democratic justices will rule on affirmative action.” The facts of the case and the disposition of the law would matter more, while the judicial philosophies of each individual justice would matter less. This would be a good thing!

Elections would still matter. Over the course of eight years, a successful president could still have a real impact on the shape of 19-member Supreme Court. But those changes would happen gradually. The Court wouldn’t “lurch.” The law would be stable. A Court shaded to the left or right would represent the slow movement of our politics in one direction or another over a generation, not the short-term happenstance of who had a coronary how many months before an election.

And the Senate could get back to making the confirmation process about qualification and not politics.

Republicans have made a big deal over the fact Gorsuch was confirmed by a Senate voice vote to his position on the Tenth Circuit. That might have something to do with the fact that there are 12 judges on the Tenth Circuit. Sometimes it’s nice to be just one voice in a crowd.


Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.