As the confirmation hearing process heads toward the seemingly inevitable placement of Judge Amy Coney Barrett on the U.S. Supreme Court, the notion being bandied about in some Democratic circles — and opposed in most Republican quarters — to enlarge membership of the Supreme Court is attracting increased attention. Politics aside, it is a prudent proposition.
Expanding the size of the tribunal would not be that novel, although it certainly would be running into strong headwinds. The size of the Supreme Court has varied from six at its outset to up to 10 justices, numbers that occasionally invited but rarely produced evenly divided tie votes.
Some Republicans, incidentally, have advocated the reverse: court unpacking. During Barack Obama’s presidency, a diverse handful of GOP senators — ranging from Ted Cruz of Texas to Arizona’s John McCain — suggested a smaller Supreme Court. One, Tom Cotton of Arkansas, advocated cutting the number of lower federal court jurists for fear that Obama or his presumed successor, then seeming to be Hillary Clinton, would fill the existing or future vacancies.
Stabilized number since 1869
But the number of Supreme Court jurists has been stabilized since 1869 by statute at the current number of nine, apart from vacancies resulting from resignation or death.
The last overture to change the law and add jurists, Franklin Delano Roosevelt’s effort to boost membership, has given the concept a bad taste and a troublesome term: “court packing.”
It came about because of FDR’s dissatisfaction with some rulings by the conservative-leaning court, composed primarily of pre-New Deal Republican appointees overturning some of his New Deal programs. The effort was viewed negatively by the public, including many in Roosevelt’s own Democratic Party, and was soon defeated in Congress.
But the short-lived plan had some significant effects. One was that the court, perhaps fearful of changes to its composition, veered off in a different direction and soon thereafter upheld three key pieces of New Deal legislation.
Those important victories were balanced against major GOP successes in the ensuing off-year congressional elections, winning an extraordinary 72 new seats in the House of Representatives and gaining seven new senators. These triumphs effectively brought Roosevelt’s domestic legislation to an end, coupled with the increased attention and resources devoted to foreign affairs and military matters as World War II loomed.
While Roosevelt’s “packing” proposal then and the one being aired now have political roots, expanding the number of High Court jurists makes sense for wholly apolitical reasons.
A boost to productivity
The main one is the favorable effect it would have on the court’s productivity. With rare exceptions, such as litigation between states, the Supreme Court picks and chooses which cases it deigns to hear among the 7,000 to 8,000, or more, petitions for appellate review filed each year. For many years after World War II and extending for several decades, the court accepted and decided 300 or more of about 3,000 to 4,000 annual applications, about 80% civil lawsuits and 20% criminal.
But that figure has precipitously declined in recent years. During the leadership of Chief Justice John Roberts over the past 15 years the court has been accepting and deciding 75 or fewer cases each term. The past COVID-affected term dipped below this figure, with the justices issuing decisions in just 61 cases, less than 1% of the total of appeals brought to them, and 11 fewer than in the 2018-2019 term. In short, while the number of requests for hearings has doubled in the last few decades, the number of cases accepted and decided has shrunk remarkably, by about 80%.
This is not to suggest that the current justices are not working hard. But they have more resources than ever before, three or four high-caliber law clerks each, along with technologically speedy devices. They also seem to be spending more time on outside ventures than their predecessors, with half of them writing books, along with teaching, public speaking gigs, and occasional engagements with media talking heads.
If they have the time and energy for these activities, some would say, they could spend some more of both churning out additional rulings.
In contrast, the Minnesota Supreme Court, with seven members, issues decisions in about twice as many cases per year — 146 in 2018, for example. Granted, it has fewer petitions for appellate action to review each year, about 700 annually, but it accepts in its discretion about 15% of them each year, in addition to several dozen cases that the tribunal is required to hear, such as workers compensation and first degree murder appeals.
The comparative paucity of U.S. Supreme Court rulings is not only frustrating to the litigants, who have to navigate through a series of time-consuming and costly obstacles to make a request for an appeal. But the sparse number of rulings each year maximizes the uncertainty of unresolved issues that are not taken up by the jurists and impedes development of precedents to provide guidance to litigants, lawyers, and judges facing similar or comparable issues as well as academics who teach about them and students who are learning their craft.
Roberts has recognized these dilemmas. In a presentation at the University of Minnesota Law School two years ago this month, he lamented his tribunal’s shrinking case load and indicated he would like to see it boosted, an aspiration that has not materialized. Neither he nor anyone else has equated the declining quantity of the court’s output to an increase in the quality of its work or the opinions it issues.
Options for expansion
A prudent solution lies in the expansion of the number of justices, i.e., court-packing. It should be done for reasons of improving the performance of the court, not for politics.
If the number were increased to 15, the figure that seems to be a fixation of court-packers from FDR to today, the court could sit in rotating panels of five jurists, much like most intermediate appellate courts at the federal and state levels in Minnesota and elsewhere. Or, it could have two seven-member panels with one alternate in the event of unavailability, recusal of jurists, or other openings. This would allow the court to hear many more cases, perhaps double or treble the current number.
The “packed” tribunal also could provide for cases of extraordinary national significance or uncertainty to be heard in full 15-member sessions upon agreement of a majority of the jurists, another practice followed by the lower federal appellate courts.
There is undoubtedly other tinkering that could make an expanded Supreme Court more efficient and effective. Those tweaks can help advance justice based on prudent principles, not politics.
Court packing, to be sure, is not a panacea for what ails the nation or the judiciary. There would be added costs involved in having more judges and their associated personnel (do they really need four clerks apiece?). But in an era when the federal government hands out billions with no regard for the deficit, what’s a few more million?
It may be well worth it to advance the interests of justice. It also would do away with those divisive 5-4 rulings — unless, of course, they are replaced with 8-7 decisions.
Marshall H. Tanick is a Twin Cities constitutional law attorney and historian.
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