Recently, many Democrats have been arguing for expanding the size of the Supreme Court. It is apparent to everyone that these calls would be an example of partisan court packing – that is, an attempt to change the decisions reached by the justices to conform to the existing President and Congress’s view. For example, the Democratic sponsored legislation to expand the size of the Court from 9 to 13 justices would allow the Democrats to fill the court with justices who would adopt the Democrats’ vision of the Constitution. As many have pointed out, apart from whether one agrees with the Democrats’ vision, this would be a bad thing to do, because it would undermine the independence of the Supreme Court and its role in our constitutional system.
In response to such proposals, some people have argued for a constitutional amendment that would fix the number of justices at nine. While such an amendment would be better than the existing arrangement where a political party can pack the Court, there is an even better arrangement than fixing the justices at nine.
The problem with fixing the justices at nine is that it might make sense to change the number over time. It is true that at present there is little support for a different number or structure to the Supreme Court, but that does not mean that that will always be the case. Perhaps in a different environment, there will be sensible reasons to have a larger or smaller number of justices (or a different structure to the Supreme Court). So long as that change is not done to pack the Court, it should not require a new constitutional amendment.
But how can one stop Congress from using its power to alter the size of the Supreme Court for partisan advantage? In fact, it is much easier than one might think. There are two basic mechanisms: delayed effective dates and supermajority rules.
Let’s start with a delayed effective date. Under one version of this procedure, a law changing the size of the Supreme Court would not take effect until 10 years after it was enacted. In that way, the Congress could change the number of justices, but could not do so in order to secure like minded justices on the Court, because no one would be able to predict which party would control the Presidency and the Senate 10 years in the future. So, if the Democrats actually believed that the Supreme Court would function better with 13 justices – not because those additional 4 justices would be Democrats, but because a 13 member court would be better for some reason – they could then enact a law that expanded the Supreme Court, but that would take effect until 2032. A similar argument applies for laws contracting the Supreme Court.
Another way to allow changes in the size of the Supreme Court without allowing partisanship is by requiring a supermajority of the Congress to enact such changes. Under a constitutional amendment that required a supermajority of the Congress to add or subtract seats from the Court, changes would normally only be able to be made with significant support from both parties, since it is rare for a single party to have a two thirds supermajority of both houses (not having occurred since the New Deal).
Still, I find this two thirds supermajority a bit worrisome, since a party with a rare two thirds majority in both houses might use its authority to control the Supreme Court – much as Franklin Roosevelt attempted to do during the New Deal. Given the party’s dominance in the political branches, it would be especially dangerous if it could easily secure control over the Supreme Court as well. Thus, I am strongly tempted to increase the required supermajority to three quarters of each house. It is true that three quarters of both houses rarely support significant legislation, but that is no objection. Such immediate changes in the size of the Supreme should not be made unless there is very wide support for it.
In sum, I propose a constitutional amendment that would prohibit changes in the size of the Supreme Court unless they were enacted either with at least a 10 year delay before taking effect or through a three quarter supermajority of each house. In this way, there could be changes in the size of the Supreme Court but without running the risk of such changes being motivated by short partisan advantages.
Posted at 8:00 AM