The Supreme Court has been packed with conservatives, the result of 15 Republican nominations since 1969, a period in which Democratic presidents have named … four. That number isn’t just a coincidence with when justices have died; it represents a series of schemes, deals, and coordinated efforts in which Republicans in all three branches of government have worked to make sure as many seats as possible stay under GOP control.
This is not a new problem. The small number of seats on the Supreme Court, and the enormous power that institution enjoys, has from the very beginning ensured that the fight over a single seat rises to near nation-wrecking status. Imagine if there were only nine members of Congress, and their selection was not via voters, but by a process that was indirect, arcane, and openly in the service of a few extremist organizations. The imagination required is minimal.
The problem caused by having a small Supreme Court is so deeply embedded that Congress actually once cut the size of the court explicitly to prevent Thomas Jefferson from getting to name a new justice. The size of the court was jiggered both up and down after the Civil War, again with the purpose of keeping certain parties from being able to fill court openings. This problem is intrinsic to a small body composed of lifetime appointments. It’s been going on that long because it’s an intrinsic structural issue.
And now there is a once-in-many-generations chance to solve it.
When you think of expanding the court, don’t think of it as “packing.” Think of it as “demilitarization.” The court shouldn’t just be expanded in order to give Democrats an edge, the goal needs to be expanding until the replacement of a justice is just short of routine, rather than a civil war.
The small court means that senators like Mitch McConnell don’t give a damn about any piece of legislation they’ve ever passed, or how well they represent their state. They don’t count victories by legislation passed. They measure their careers in justices. They subjugate their own branch into a platform for feeding another. The small court generates huge incentives to cut deals, disrupt government, break rules, and simply cheat. For weeks, McConnell has been unwilling to even consider taking up legislation that could save thousands of lives, because he wouldn’t take a chance that it might slow Barrett’s confirmation. This is a broken system.
How many justices is enough justices? A good number might be 26. That’s two for each appellate court, mirroring the original scheme. And yes, adopting that officially could mean more justices would be added if more courts were added, for example, to support additional states or a growing population. Which also seems like a good idea. The number 26 is somewhat arbitrary, but it represents the scale of the change necessary.
On a 26-member Supreme Court, the death or retirement of any justice would no longer necessitate a national conflict or compel Supreme Court-obsessed leaders in the Senate to burn down their own body’s rules for a partisan edge. The Senate might even come to rate legislation as being more important than serving up a judge assembly line, but … no guarantees on that.
A larger court would also mean that justices would feel freer to retire at any point without feeling that the weight of the nation was on their shoulders. Appointments might still be for life, but justices would not be under such pressure to die with their robes on.
And maybe that would be an appropriate legacy in the wake of Ruth Bader Ginsburg’s death—a court where never again are the rights of millions so keenly balanced on the health of a single person; one where the burden can be laid down without it seeming like betrayal.