Justice by Numbers

• Author: Mark Walsh
• Pages: 20-21

The U.S. Constitution’s Article III says the judicial power of the nation “shall

be vested in one supreme court.” It says nothing about how many justices should

serve on the court.

That has led to a range of sizes throughout U.S. history—from fi ve to 10 autho-

rized seats on the court. Now, those advocating an expansion of the high court by two, four, six

or some other number of seats are having their moment.

20 || ABA JOURNAL MAY 2019

The Docket

Supreme

Court

Report

Justice by Numbers

Proposals resurface to expand the size of the court

By Mark Walsh

In recent months, a concept that

has been on the fringes of political

theory has suddenly gained steam,

with several progressive organiza-

tions calling for an expansion of the

court and pushing Democratic presi-

dential candidates to respond to the

idea.

The idea is that if the Democrats

win the White House and Senate in

next year’s election and retain control

of the House of Representatives, they

could push for the additional seats on

the high court. And those seats would

presumably be fi lled with new left-

leaning justices who would shift the

balance away from the court’s conser-

vative majority.

“We are in a dire democracy emer-

gency in which the Supreme Court

has belonged to the Republican Party

and the donor class,” says Aaron

Belkin, a political science profes-

sor at San Francisco State University

and the executive director of Pack the

Courts , a fl edgling organization that

calls for adding four seats.

‘A HOSTILE SUPREME COURT’

Belkin says two of those seats

would “nullify” the fact that President

Donald Trump’s fi rst nominee to

the court, Justice Neil M. Gorsuch,

won confi rmation in 2017 only

after Senate Republicans refused to

advance President Barack Obama’s

nomination of Merrick B. Garland

for the vacancy created by Justice

Antonin Scalia’s death in 2016.

Belkin and some other progressives

believe that Trump’s second nominee,

Justice Brett M. Kavanaugh, should

be e ectively canceled out by adding

a third and fourth new seat because

the president lacks legitimacy or

because of Republicans’ hardball tac-

tics to confi rm Kavanaugh.

“The court is a partisan institu-

tion,” Belkin says. “Nothing is going

to change that.”

Mark Tushnet, a professor at

Harvard Law School who leads the

advisory board of Pack the Courts ,

says that Democrats need to realize

that if they are to achieve their policy

goals on issues such as the environ-

ment, immigration and health care,

the increasingly conservative-dom-

inated federal courts, including the

Supreme Court, likely stand in the

way.

“You have to fi gure out some way to

deal with a hostile Supreme Court,”

Tushnet says.

Other progressive groups that have

been pushing to expand the court,

among other radical ideas, include

Demand Justice and Indivisible .

The groups’ e orts began to show

some traction in March. First, for-

mer U.S. Attorney General Eric H.

Holder Jr., who served under Obama,

told an audience at Yale Law School

that expansion of the court should be

given serious consideration.

Soon after, Democratic presidential

candidates began to o er thoughts on

the idea.

Sens. Kirsten Gillibrand of New

York, Kamala Harris of California

and Elizabeth Warren of Massachu-

setts have said they would not rule

out the idea , while former U.S. Rep.

Beto O’Rourke of Texas and Pete

Buttigieg, the mayor of South Bend,

Indiana, have embraced the concept

of expanding the court to 15 mem-

bers, with fi ve nominated by a Re-

publican president, fi ve by a Demo-

crat and fi ve by unanimous consent

of the other 10.

Buttigieg told a CNN town hall in

March that he is trying to stop the

Supreme Court from “sliding toward

being viewed as a nakedly political

institution. I’m for us contemplat-

ing whatever policy options will allow

that to be possible.”

LESSONS FROM FDR’S PLAN

While legal experts say the idea of

involving justices in choosing some

of their peers would require a consti-

tutional amendment, merely adding

seats to the court could be done by

passing a law.

The Judiciary Act of 1789 created

a Supreme Court of one chief jus-

tice and fi ve associate justices. An

1801 federal law reduced the size of

the court to fi ve justices, but the new

administration of President Thomas

Je erson did not allow that law to go

into e ect.

The six-member court grew to

seven in 1807 , to nine in 1837 and to

10 in 1863. In 1866, Congress passed

a law that would have reduced the

court by attrition to seven mem-

bers , though the size fell only to eight

members by 1869, when Congress

passed a law setting the size at nine,

where it has remained since.

President Franklin Delano

Roosevelt’s famous “court-packing”

plan came after he was re-elected in

1936, and after the Supreme Court

had struck down many of his fi rst-

term New Deal programs. Roosevelt’s