Congress should significantly increase the number of justices on the US Supreme Court

Author: sarahwornow7 | Last modified: Jan. 17, 2018, 4:32 p.m.


PRO (6 arguments)

Definitions:

Significantly increase means that we increase the number of justices at least 100% more than the current number, or at a minimum going from 9 to 18 or more.

1. Claim: Having 9 Sup Ct justices is a totally arbitrary number that just evolved over time so if it’s not working, Congress should change it.
Warrant:

If it’s arbitrary and random, then there is no reason why we shouldn’t increase the number to have a more fair and balanced court. 

There is no Constitutional requirement to have 9 Justices. The Constitution itself does not specify the number of justices and that number has actually fluctuated through the years. In fact, the first Sup Ct had only six justices. The deep respect for the court as an institution often blinds us to its flaws. The greatest of those flaws is that the court is too small. Nine is actually one of the worst numbers that you could pick. The nine-member Court is a product not of some profound debate or study, but pure happenstance. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of this Court.  Now we have 13 circuit courts, but the number of justices stayed frozen at 9.

Most federal courts of appeal now have as many as 29 judges. According to George Washington University Professor and legal scholar Jonathan Turley, 19 would be ideal, which is the average size of a Circuit Court (the court level beneath the Sup Ct). Ever since the Court stopped at nine members, we have repeatedly had problems of 5-4 splits with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. Today the swing vote is Justice Kennedy. Before Kennedy, Justice Sandra Day O’Connor was the swing justice and, for years, shaped the law according to her often changing views on subjects ranging for the death penalty to privacy.

Just because we settled on 9 arbitrarily does not mean that any number is as good as any other.  A 19-member court has been shown to work where a large court would be unwieldy. Experience both domestically and internationally would suggest that in close cases, a 19-member court functions well as a whole and show greater diversity of opinion and experience. More importantly, the power of the judges themselves is diluted by the number.

Experience has shown that a 19 member court is small enough to be manageable and would not present a significant burden in terms of confirmation.  9 is simply too small for a court with such final and sweeping authority.

Impact:

Since there is no Constitutional requirement to have 9 justices, and the court will clearly function better with 19 or more justices, then Congress should do what’s best for the court and increase the number of justices.

Sources:

Washington Post; LA Times; US Constitution

2. Claim: Increasing the number of justices will restore the public’s faith in the Court, which is vital to our nation’s health.
Warrant:

When people don’t believe in our Supreme Court, then one of the pillars of American government will collapse. Citizens must respect and obey the rule of law, or there will be anarchy and an end to our society as we know it. 

As of July 2016, the U.S. Supreme Court's 42% job approval rating is the low point in Gallup's 16-year trend. Why do people disapprove so strongly of the highest court in the land?  Gallup attributed the poor results to the divisive confirmation process over Obama’s nominee Merrick Garland. In addition, as a result of Republican’s refusal to consider an Obama appointed nominee to fill Scalia’s seat on the court, the 8-person Supreme Court deadlocked on several potentially important decisions, which meant the lower court ruling is upheld. One of the more significant court decisions of the term was the ruling in United States v. Texas, where the court considered whether the Obama administration was entitled to shield as many as five million unauthorized immigrants from deportation and to allow them to work. According to a Reuters poll, “ 61% of Americans support the plan to relax immigration policy for some undocumented people.” Thus a majority of Americans widely disapproved of that decision which resulted in the Supreme Court deadlock, and this affects their view of the Court.  If we had more Justices, the court wouldn’t have been deadlocked over this issue and the case could have been heard in the Supreme Court.  In addition, Americans' trust in the judicial branch of the federal government has fallen significantly in the past year, and now a record-low 53% say they have "a great deal" or "a fair amount" of trust in it, with Republicans approving of the judicial branch by only 26%.

Impact:

Gallup has documented that Americans' basic trust in government has eroded in recent years, and the reputation of the Supreme Court, often the most popular and trusted of the three branches of the federal government, has suffered.  Judge – we can fix this negative public perception and increase the American public’s satisfaction of the Supreme Court by significantly increasing the number of Justices which will help resolve confirmation and deadlock issues and spread the power to more justices.

3. Claim: With such a small number of justices, there is often a concentration of power in one swing vote justice which is why the majority of Americans believe the Supreme Court has too much power.
Warrant:

The court is usually split – 4 to 4 – liberals versus conservatives – over every issue.  One justice – currently Justice Kennedy – therefore has too much power to decide cases that affect the whole country, and he’s not even an elected official. 

Sup Ct justices are appointed by Presidents, not elected by the American people.  So how is it fair that one “swing vote” justice can decide incredibly important cases on the right to Free Speech, abortion rights, gun laws, health care, and even who should be President of the United States such as in Gore v. Bush? A full 20% of cases from each term are decided by one vote (often Justice Kennedy) and  lawyers often craft arguments aimed at capturing his vote and pander to him at oral argument. Justice Kennedy runs the court, according to conventional wisdom. He often sides with the conservative justices in civil rights and campaign finance cases (e.g.Citizens United v. FEC), but he frequently casts the deciding vote in cases advancing socially liberal causes (e.g. Miller v. Alabama). In 2014-15 term, Kennedy was in the majority in all 10 of the cases decided by one vote, where he was the swing vote.

Impact:

Judge – what this means is that one person – currently Justice Kennedy - has tremendous power to shape our laws. He is not even elected into this position of power – it just is a result of our SMALL Supreme Court.  And do you even know anything about him – do you think most people even know his first name? It would clearly be better to have more justices to make these important decisions and eliminate this problem of the all-powerful swing vote. By significantly increasing the size of the Sup Ct, the court’s power will be spread among many more justices, so no one justice will be too powerful.

Sources:

The Daily Signal; Supreme Court’s own case statistics

4. Claim: The US Sup Ct should follow the example of the highest courts in other countries, most all of which have a greater number of justices.
Warrant:

Other countries have figured out that it’s better to have more justices deciding the most important cases. These countries don’t have our problems of “swing” vote justices or having too much power concentrated in the hands of too few justices. 

A review of other nations reveals far greater diffusion of power than the US. For example: Germany (16), Japan (15), United Kingdom (12), India (31), Israel (15). Some use far greater numbers of justices who are divided among different divisions like the 74 jurists in the Spanish high court or the 124 judges and deputy judges in France. Again, while these systems have important structural differences, they do not have the concentration of power that characterizes the U.S. Supreme Court. Both the recent polls and proposed reforms reflect a common concern that 9 people should not yield such concentrated and stagnated power.

5. Claim: A larger court would also give more Presidents more nominees and give the court a greater diversity of views.
Warrant:

Just like in anything else in life – in school, in the workplace, at home – more individuals means more individual views about a subject. 

The Supreme Court currently is not diverse.  They are all graduates of just three Ivy League law schools. None are Protestants. All but one come from a coastal state. Three of them grew up in New York. In a 2016 New York Times article, Justice Sonya Sotomayor said “The Supreme Court is never going to be a melting pot reflective of the country. In most of our lifetimes, the court is only going to turn over one full circle.”  While this is true, more justices would mean more opportunities for diversity.  And judge - Diversity of opinion is good for the judicial process because with more Justices comes more personal experiences and different backgrounds which lend to different perspectives.  A report by Scientific American in 2014 says decades of research by organizational scientists, psychologists, sociologists, economists and demographers show that socially diverse groups (that is, those with a diversity of race, ethnicity, gender and sexual orientation) are more innovative than homogeneous groups. It seems obvious that a group of people with diverse individual expertise would be better than a homogeneous group at solving complex, nonroutine problems. It is less obvious that social diversity should work in the same way—yet the science shows that it does. This is not only because people with different backgrounds bring new information. Simply interacting with individuals who are different forces group members to prepare better, to anticipate alternative viewpoints and to expect that reaching consensus will take effort.

Impact:

Judge – the more justices, the more individuals to bring their experiences to bear on the Court.  The science is conclusive that the more diverse a group of people, the better outcomes for problem solving.

Sources:

New York Times, September 2016; Scientific American

6. Claim: With more members and seats to fill, the confirmation process would be easier and we would get better quality justices, not just justices who are picked because they can get past the confirmation hearing stage.
Warrant:

Because filling each seat is such a big deal, presidents nominate non-controversial justices who can pass the bitter partisan confirmation hearings. These are often the least qualified and least published legal scholars. 

“Ugly confirmation fights damage the Supreme Court’s legitimacy and authority,” said the Chief Justice of the Supreme Court John Roberts in 2014. The confirmation process has gotten so bitter because with only 9 justices, and each justice living longer, vacancies on the Court are becoming rare. Republicans wouldn’t even speak to Merrick Garland, Pres. Obama’s nominee to fill the vacant seat left after Justice Scalia died last year.  Republicans blocked Garland so they could wait until after the Pres. Election and hopefullly nominate a conservative justice. When Republican Donald Trump was elected President, Republicans got to nominate conservative judge, Neil Gorsuch for the vacant Scalia seat.  Now Democrats are threatening to filibuster Gorsuch’s nomination hearing which would mean Republicans would need 60 votes instead of 52 to approve Gorsuch as our next Sup Ct justice. This is causing a lot of political drama in the Senate. With more members, the stakes wouldn’t be so high when a new justice is nominated, and hence the confirmation process likely wouldn’t be as intense as it is now.

Also, because people are living longer and the average age of life expectancy has increased every decade to the current 78.7 years according to U.S. Centers for Disease Control and Prevention, a Supreme Court vacancy is becoming rarer.

Impact:

The impact of so few justices who live longer means when there is a vacancy, the President nominates a non-controversial nominee who has the best chance of being approved.  These non-controversial nominees aren’t necessarily the best legal minds but those nominees who are not particularly outstanding or distinctive in their field in order to make confirmation easier. A larger court would decrease each justice’s power, but it would probably increase the high court’s overall expertise.

Sources:

CNBC; The Atlantic



CON (3 arguments)

1. Claim: Our Supreme Court is functioning as it ought to, so why change something that is working?
Warrant:

There have been 9 justices of our Supreme Court since 1869, and 6 before that.  Has our country not been successful enough since then? 

Since 2007, the government has conducted polls on the public’s knowledge of the Constitution.  Guess what? In general, people know a lot about our founding document, particularly our Bill of Rights – the first 10 amendments to the Constitution. 70% of respondents scored at least a very impressive 80% of questions about the Bill of Rights. According to a poll conducted by the National Constitution Center in Philadelphia, individuals all along the ideological spectrum believe our nation's founding principles are still those upon which we should rely. 75% of Americans agree that the Constitution is an enduring, relevant document; and 60% believe the rule of law should be followed and the rights of everyone protected, even in the face of vocal majorities and short-term public safety considerations. Yale Law School Professor Richard Albert believes there is a cultural acceptance of 9 justices by the American public.  “Time and tradition have conspired to make nine (justices) an integral part of American political culture, and the strength of this perception has hardened.”

Impact:

What these polls mean judge, is that the Constitution is alive and well and meaningful in the lives of Americans.  If our Supreme Court was disfunctional, it would cause damage to the public’s belief in the judicial branch to uphold our Constitutional principles.  Clearly, that has not happened and thus, the Supreme Court should not be “fixed”, since it ain’t broken.

Sources:

Constitution Facts government website; National Constitution Center website

2. Claim: Keeping the court small reduces the chances of judicial activism, where the court acts in a political way, instead of just interpreting the Constitution, as they are supposed to do.
Warrant:

The smaller the court the harder it is to put together a majority.

Minneapolis law professor Michael Stokes Paulsen argues that the smaller the Supreme Court is, the less likely it is to have the capacity to do damage to the Constitution. How would that work? Simple: A smaller court means diminished judicial activism. As the Court’s size shrinks, activist majorities become mathematically harder to put together. Four votes out of seven is harder to achieve than five of nine. Four out of six becomes harder yet. With a Court of six, major changes in interpretation of the Constitution and federal laws would require a two-thirds majority rather than a 5-to-4 squeaker — the margins by which the Court upheld Obamacare, created a right to same-sex marriage, and reaffirmed Roe v. Wade. As at present, ties would yield no precedent but merely affirm lower courts’ rulings, with more limited effect. Fewer justices thus means less judicial activism, at least at the Supreme Court level.

Impact:

Some judicial scholars even believe the Supreme Court could be improved by actually having LESS justices than 9.  Thus, significantly increasing the number of justices will only do more harm to the Court.

Sources:

The Federalist Society

3. Claim: The one time Congress tried to increase the number of justices, it caused a “Constitutional Crisis,” and Congress failed to pass the increase.
Warrant:

Any change in the number of justices causes an immediate imbalance in liberal versus conservative leanings of the court, which is very upsetting for the whole country.In the Judiciary Act of 1869 Congress had established that the United States Supreme Court would consist of the Chief Justice and eight associate justices. Then along came President Franklin D. Roosevelt in 1937 with his proposed "court-packing" plan that would have added six new seats, all of which he would have been able to fill with nominees who would vote to uphold his policies. During Roosevelt's first term the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the size of the Supreme Court, Roosevelt pointed out that it was within the power of the Congress to change it. The legislation was viewed by members of both parties as an attempt to stack the court, and was opposed by many Democrats, including Roosevelt’s own Vice President. According to William Leutenberg, a history professor at University of North Carolina, the bill came to be known as Roosevelt's "court-packing plan,” and is viewed by historians as a power grab that negatively affected his legacy. It was defeated in the Senate. In addition, another FDR author and scholar, Michael Parrish, wrote that “the protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice Hughes and the administration's Congressional opponents.”

Impact:

The impact of FDRs attempt to increase the size of the court is an embarrassing mark on his presidency that brought an end to his progressive New Deal reforms.  Maybe he could have brought the country out of the Depression faster and saved millions of people needless suffering, if he could have had everything he wanted in the New Deal, instead of wasting his political capital trying to increase the size of the court.

Sources:

History.com; NPR