Depoliticize Supreme Court by adding two dozen new justices

The ugliness of the nomination this fall painfully underscored the politicization of the Supreme Court. Some level of partisan dueling may be inevitable, but the naked politicization of the Supreme Court is not good for its legitimacy or the nation. Yet, every nomination is now a “winner takes all” fight for control of an entire branch of government.

Fortunately, there is a readily achievable way to depoliticize the Supreme Court. It can be done by radically expanding it. Calls for more justices are often thinly veiled partisan attempts at packing the bench. That is certainly the case for proposals to add two more seats. But substantially expanding the Supreme Court, say by adding two dozen more justices, would actually be a nonpartisan action that would depoliticize it.

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The size of the Supreme Court is determined by Congress rather than the Constitution. The Constitution requires only that the nation have a Supreme Court. This means that only one justice is required, and the size of the bench has varied historically between six and 10 justices. The Supreme Court could thus be expanded by a simple majority vote in Congress. Moreover, because the Constitution requires life tenure for each justice, an expansion could not be readily reversed in the future.

Expanding the Supreme Court from nine seats to 33 seats would make each seat less crucial. With nine justices, it is quite likely that there will be a swing justice like Anthony Kennedy, whose retirement put the whole Supreme Court into political play. With 33 justices, it is unlikely that there would be any single swing justice, so nominations would cease to be “winner takes all” affairs that raise the partisan nature of nominations.

A larger Supreme Court would also have more frequent turnover, which would further reduce the stakes for each confirmation. With more regular nominations, the political composition of the Supreme Court would fluctuate more closely with national election cycles, resulting in a makeup that better reflects voter preferences rather than deadhand control.

A larger Supreme Court could be more diverse. The justices could look more like America in terms of demographic characteristics, educational background, and life experience. A larger Supreme Court could also accommodate a greater range of viewpoints from red to blue, as the White House and Congress would not feel the pressure to stack the bench with overly partisan nominees each time a rare appointment arises.

The justices of a larger Supreme Court could also sit in panels, rather than as a full bench for most cases, which would allow it to hear more cases. The current Supreme Court hears only around 75 cases a year, which is substantially less than it did even a quarter century ago. As the American population and economy grows, it needs a Supreme Court that hears more cases and resolves more splits among lower courts, rather than less in order to ensure greater national uniformity and certainty of law.

Lest you think a Supreme Court with 33 justices is unwieldy, consider the Ninth Circuit Court of Appeals. It has 29 judges and is effectively the highest court for the entire West Coast, covering nearly a fifth of the United States population. (In theory, cases can be appealed to the Supreme Court, but the Supreme Court heard only 12 appeals from the entire Ninth Circuit last year.) Despite its size, the Ninth Circuit works quite well, hearing cases in panels of three judges and resolving thornier problems or splits between panels through en banc hearings that consist of larger panels of 15 judges. The point is not a precise number of justices, but that a panel structure makes a larger Supreme Court manageable.

Obviously, a larger Supreme Court will eliminate the expressly political nature of some cases such as Bush v. Gore or Roe v. Wade. But it will reduce the high stakes nature of confirmation fights, which will go a long way to restoring the legitimacy of the Supreme Court as a professional, rather than partisan branch of government. Unlike proposals to change life tenure for justices, or to have some justices chosen by other justices or to involuntarily send justices to lower courts, a simple expansion of the Supreme Court would be on rock solid footing with the Constitution.

It is clear why Democrats would want to expand the current Supreme Court, but Republicans should too, if they are really playing the long game. If Democrats capture the White House and just 50 Senate seats in 2020, they can expand the Supreme Court permanently. Does anybody really think they will not restructure the Supreme Court if they prevail in 2020? The best chance for Republicans to salvage this is to cut a deal now, so they could also select a majority of the class of new justices.

At the end of the day, the legitimacy of the Supreme Court is in peril, and only Congress can save it. It is time for the politicians to embrace a nonpartisan solution and to depoliticize the highest bench in the nation.

Adam J. Levitin is the Agnes Williams professor at Georgetown University Law Center and former Bruce Nichols professor at Harvard Law School.