The Supreme Court Doesn't Need 9 Justices

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-packersworries about protecting the integrity of court: It’s not worth compromising the institution, they say, for a temporary policy result.

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

The court’s current design is troubling. Proof is found in a commonplace observation at every mid-term and presidential election, when it is said that the most critical outcome of the election will be the one or handful of justices appointed to the Supreme Court by the President. The refrain has become so common that we have become blind to its frightening implications. How could it be that the most important decision a President makes is picking one non-elected lawyer, distinguished at this point mainly by their ability to avoid ever saying anything controversial, to a court that decides cases at an average rate of one or two a week? ...