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. In 1869, when the number nine was chosen, the U.S. And countries, with much smaller populations, have much larger high courts.
That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. Congress can pass a law changing the court’s size at any time. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Such a proposal isn’t unconstitutional, nor even that radical. 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. This needn’t be done as a partisan gambit to stack more liberals on the court. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. Instead, the right size is much, much bigger. 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, we need a bigger court because the current institutional design is badly broken. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. The battle over court packing is being fought on the wrong terms. The equally vociferous refrain of anti-packers worries about protecting the integrity of court: It’s not worth compromising the institution, they say, for a temporary policy result. A packing approach, in proponents’ view, is justified by the need to “ fight dirty” in exigent times. Justice Kennedy’s retirement has prompted a chorus of cries by Democrats to resuscitate a seemingly unlikely idea: “ packing” the Supreme Court.įor 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.