Build A Bigger Bench?

Joe Biden’s 36-member commission to reimagine the Supreme Court is designed to do nothing and go nowhere, which makes it perfect for all its member from Yale Law School. Rep. Jerry “Weeble” Nadler, chair of the House Judiciary Committee isn’t going to let it go that easily, perhaps making good on the Democratic senators’ threat to SCOTUS, and so he along with Senator Edward Markey offered a DOA bill to expand the Supreme Court to 13 justices.

There isn’t a chance in the world that this will pass. Speaker Pelosi won’t allow a floor vote, it’s that far from possible. There are two putative arguments in favor of expanding the Supreme Court.

“We are here today because the United States Supreme Court is broken, it is out of balance and it needs to be fixed. Too many Americans view our highest court in the land as a partisan, political institution, not our impartial judicial branch of government,” Markey said at a press conference.

How many Americans are “too many” is hard to say, and Markey doesn’t say it. As for the perception that the Court is partisan, Democrats have been pounding that since the Senate refused to consider Merrick Garland’s nomination, desperately seeking to spread that belief* while McConnell’s decision not to give Garland a hearing might have been a terrible miscalculation. He was as benign a nominee as there could be. McConnell handed the Democrats this issue on a platter and are trying to make the most of it.

But why 13 justices? Nadler to the rescue.

“Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court,” said Chairman Nadler. “But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression, and I am pleased to join my colleagues in introducing the Judiciary Act of 2021.”

Of course, when justices rode the circuits, the number of  circuits was relevant. Justices haven’t done that since Congress abolished it in 1911. But Congress has the constitutional authority to change the number of justices, and has done so in the past. Why not now?

Wisconsin Prawf Joshua Braver explains what and why the number was changed.

The seven previous changes to the Court’s size did not raise these same dangers, at least not nearly to the same degree. I divide these ostensible precedents into two groups. The first group is tied to the practice of circuit-riding, a now obsolete system that required the addition of Supreme Court Justices to staff newly created circuit courts for recently admitted states. The expanding party would gain an appointment or two on the Court to ensure that enough Justices were available to preside over circuit cases, but this did not swing the ideological majority on the Court, and because the practice was seen as legitimate, there was little danger of  retaliation.

The second group of changes consists of attempts to court-pack. There are two examples. In both, to prevent a future appointment, Congress passed a law that reduced the number of seats on the Supreme Court. The action is similar to the Senate’s refusal to confirm a presidential nominee to the Court. President John Adams and the Federalists’ 1801 efforts to block President-elect Thomas Jefferson’s future Supreme Court appointment ultimately failed and serves as no type of precedent. Where Adams was thwarted, the Reconstruction  Republicans succeeded. Indeed, the Reconstruction Republicans not only blocked two of President Andrew Johnson’s appointments by abolishing the vacant seats, but also after winning the Presidency at the next election, Republicans then restored the Court’s size and filled the new seats. However, there was less risk of initiating a downward spiral of packing because Johnson lacked the support of either major political party.

The point isn’t that it can’t be done. It can. The point is that claims that there is plenty of precedent are misleading. The Court has had nine justices since 1869. That doesn’t mean it can’t change, but a number that served adequately for such a long time shouldn’t be ignored.

Senator Markey contends that the increase to 13 would “fix” the Court by restoring “balance,” by which he means it would enable the current president to nominate four new justices and create a putative Democratic majority on the Court, thwarting the Republican majority, by which he means justices appointed by a president of that party. If history teaches us nothing else about Supreme Court justices, one can never be sure what they’ll do once they’re on the Court, and they rarely perform quite the way others insist they will.

By increasing the number to shift the “majority” from Republican to Democrat, will infrastructure balance be restored? Not by any cognizable definition of “balance.” It will do what its proponents want it to do, give the Dems more justices than the Reps. And since Justice Breyer refuses to do as Demand Justice demands and retire now for the sake of the party, what other choice do they have to seize control of the Least Dangerous Branch and weaponize it?

Of course, if this happened, there would be nothing to prevent the Republicans from adding another four of their own when they next take control of the presidency and Senate, engaging in a judicial arms race that will not end well for anybody except the guy hired to build a bigger bench.

*Sen. Markey argues that the Republicans “stole” the Supreme Court’s majority.

“Republicans stole the court’s majority, with Justice Amy Coney Barrett’s confirmation completing their crime spree,” Senator Edward J. Markey, Democrat of Massachusetts and a sponsor of the legislation, said in a statement announcing it. “Senate Republicans have politicized the Supreme Court, undermined its legitimacy and threatened the rights of millions of Americans, especially people of color, women and our immigrant communities.”

Assuming the Republican’s shenanigans in denying Garland a hearing was theft, that would explain one seat, not three.