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Four Ways to Expand the U.S. Supreme Court
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By: John Ross E.
| In: Politics
In the same way that countries like Libya are "failed states," the U.S. Supreme Court is a failed institution. Always partisan, either mainly or partly, its authority—meaning the people's acceptance of the validity of its rulings—rests on a kind of momentum, a belief that despite its long history of missteps (Dred Scott and Plessy v. Ferguson, to name just two) the Court can be trusted, in time, to self-correct.
The first real crack in the dam of faith occurred with the Bush v. Gore decision, in which a nakedly partisan majority installed a losing presidential candidate in the Oval Office simply because it could, using only its authority, and not the law, as justification. Later decisions like Citizens United put proof to many people's suspicions that the Court was an operative in a war for political control and no longer a place where law, even bad law, had a place.
What can be done to prevent this oppression and the revolt that will surely follow? Is there a solution?
The first real crack in the dam of faith occurred with the Bush v. Gore decision, in which a nakedly partisan majority installed a losing presidential candidate in the Oval Office simply because it could, using only its authority, and not the law, as justification. Later decisions like Citizens United put proof to many people's suspicions that the Court was an operative in a war for political control and no longer a place where law, even bad law, had a place.
What can be done to prevent this oppression and the revolt that will surely follow? Is there a solution?
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A "Balanced Bench." idea. 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.
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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.
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Another 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.
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The 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.
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