Jacob Hale Russell is assistant professor of law at Rutgers, The State University of New Jersey.
Justice Kennedy’s retirement has prompted a chorus of cries by Democrats to resuscitate a seemingly unlikely idea: “packing” the Supreme Court.
For would-be packers, expanding the court from nine to 11 justices, if and when the Democrats take back executive and legislative power, provides the only opportunity to regain a liberal majority on the court. A packing approach, in proponents’ view, is justified by the need to “fight dirty” in exigent times. The equally vociferous refrain of anti-packers worries about protecting the integrity of court: It’s not worth compromising the institution, they say, for a temporary policy result.
Recent years’ decisions, and the frequency of 5-4 splits, have made it difficult to disagree with the fact that the Supreme Court is a fundamentally political, partisan body. How we got to that point is contestable. Liberals might date true partisanship—when the court went from being liberals and conservatives to being Democrats and Republicans—to Bush vs. Gore. Conservatives might say liberals themselves opened the floodgates to politicization with the Warren court’s expansive decisions on rights. Legal theorists might suggest this is simply part of the fundamental nature of law. As first-year law students learn, “easy cases” are rare and laws are never unambiguous. There is no unanimously agreed upon mode of interpretation. And even if we agreed on a mode of interpretation—even if, for instance, originalism was universally adopted as a means of constitutional interpretation—what the constitution “originally meant” is almost always up for reasonable debate.
There are further benefits to a much larger Supreme Court. A larger court could hear more cases, which could help break up the cabal that currently controls the court’s docket. One of the most terrifying aspects of current Supreme Court practice is the politicking to get particular cases before it, which benefits a small cadre of insiders who are usually the system’s most staunch defenders. Unlike circuit courts, the Supreme Court picks and chooses which appeals it wants to hear. Currently it grants hearings for only about 80 out of 8,000 cases filed each term, making it five times harder to get your case in front of the court than to get into the nation’s most competitive colleges. That’s, put plainly, absurd. Because the court issues so few opinions, its few pronouncements have outsize influence. What’s especially disturbing is how the 80 cases are chosen. An increasingly small number of lawyers, who are usually past Supreme Court clerks themselves and who know what the court will look for in a petition for hearing, are responsible for most of the arguments before the court. A 2014 Reuters investigation found that just 66 lawyers, of whom 63 were white and 58 were men, were six times as likely to get their cases heard than any other lawyers. Half were former Supreme Court clerks. By hearing many more cases, a larger court would break up this scheme. A larger docket would be healthy in other ways, allowing a uniform national resolution of more disagreements between regional circuits. There is nothing in the Constitution that envisions the court hearing such a small fraction of the nation’s cases, and the framers lived in an era of extremely low federal judicial volume and minimal influence of the Supreme Court. At three times its current size, the court’s ratio of justices to filed appeals would be more in line with that of the circuits.
The greatest feature of an expansion is that it would convert what currently seems like an unavoidable vice—the court’s politicization—into a strength. Law cannot be divorced from politics. But politics can be made to work better with better institutional design. Just as a 9-person Congress would be highly undemocratic, dangerously powerful, and ultimately ineffective, a 9-person court is no better. Larger bodies have some inherent features that are more democratic and effective: they are more representative, and they can include a more diverse group; they can do more work; their splits are less likely to be narrow and therefore arbitrary; they have more regular, natural turnover, and any one vacancy would not dominate the political scene as it does today. If politics are inevitable, they should at least be made to work: a larger number means Republican justices and Democratic justices would be less likely to engage in simple bloc voting. With a larger body, more natural coalitions can develop, yielding richer dynamics than the 5-4 decisions that have become all too common these days. (Because justices serve for life, the coalitions could be more free-flowing and less beholden to the party system, unlike legislators who must maintain party support for committee assignments and reelection.) Finally, court size isn’t one of the design features that supposedly insulates the judiciary from the tyranny of the majority, unlike lifetime appointments.