Supersize the Supreme Court to Save It

A new way of thinking about depoliticizing the judiciary


J. Scott Applewhite/AP Photo

With the passing of Justice Ruth Bader Ginsburg, an ugly, partisan Supreme Court nomination fight once again looms over American politics, starting with today’s Senate confirmation hearings for Judge Amy Coney Barrett. Fortunately, there’s a simple—and unambiguously constitutional—way to avoid this problem in the future. We can depoliticize the Court by supersizing it.

Instead of partisan court-packing by adding just enough seats to change the ideological balance of the Court, Congress should effect a wholesale makeover of the Court by adding two dozen more seats. This change would dramatically improve both the political climate of nominations and the way the Court operates, all while staying within the confines of the Constitution.

The problem with the current system is that it is winner-take-all. If one party gets a majority of the seats on the Court, it controls it, not just until the next election, but potentially for a generation. In a polarized political environment, this sort of winner-take-all system is a recipe for brutal confirmation fights that undermine the Court’s appearance of impartiality and legitimacy.

More from Adam J. Levitin

We can change the Supreme Court from a high-stakes winner-take-all contest to a lower-stakes contest that more accurately reflects the undulations of electoral outcomes. If the Court were substantially expanded to, say, 33 justices, it would be too large for all justices to hear every case. Instead, the Court would have to sit in smaller panels of randomly assigned justices, just as the circuit courts of appeals already do. If two panels reached different rulings in separate cases that dealt with the same issue, the split could be resolved through a hearing before a third, larger en banc panel (but still not the whole 33-member Court), whose ruling would bind subsequent panels the same way the Court is bound by its own past rulings today.

A larger Court, sitting in randomly assigned panels, would create a more even distribution of odds that either party would be in the majority on any given panel. The odds would change depending on electoral outcomes, but even if a majority of justices were appointed by one party, there would be no guarantee that any randomly assigned panel would reflect that majority. For example, even if the Court consisted of 18 Republicans and 15 Democrats, there would still be a 41 percent chance that the majority of any random panel of five justices would be Democrats. This sort of uncertainty about panel composition is precisely what would turn down the political heat.

A larger Court would also lower the stakes of any individual nomination. Instead of a single seat shifting control of the Court, it would have only a small effect on the odds of either party having a majority on any given panel. In the example above, the shift of an additional seat from Democrats to Republicans would still leave a 35 percent chance of a Democratic majority on a panel. Moreover, with a larger Court, turnover would be more frequent, so a nomination would not be a rare, generational event.

Expanding the Court would also have other benefits. A larger Court enables appointment of a more diverse bench that better reflects America, not just in terms of demographics, but also in viewpoint. The current high-stakes nomination process creates pressure on both parties to stack the Court with ultra-partisan nominees. By lowering the stakes for a nomination, a larger Court makes it possible to appoint nominees all along the ideological spectrum. And more frequent turnovers on a larger Court would mean that its composition would better reflect current voter preferences, rather than the dead-hand control of Senate majorities from decades ago.

Additionally, moving to a panel system would enable separation of the process by which the Court decides what cases to hear from the actual adjudication of those cases. Under the current system, the Court chooses which cases to hear in a given term, among thousands of potential lower-court rulings. This process creates an opportunity for justices to pick cases based on how they want to rule. Just as no man should be able to pick his judge, so too should no judge be able to pick her case. If the justices picking which cases to hear did not know which justices would be ruling on those cases, the case selection process itself would be depoliticized.

We can change the Supreme Court from a high-stakes winner-take-all contest to a lower-stakes contest that more accurately reflects the undulations of electoral outcomes.

Unlike proposals to change life tenure for justices or to have some justices chosen by other justices or to involuntarily reconfirm justices to lower courts or to impose supermajority voting requirements, supersizing of the Court would be on rock-solid constitutional footing. The Constitution is silent about the size of the Supreme Court. The choice of the Court’s size rests with Congress, which has historically opted for anywhere between six and ten justices. Congress can expand the Court by as many seats as it wants, and because the Constitution mandates life tenure for justices, a subsequent Congress cannot readily reverse an expansion. Expanding the Court to 33 seats would lock in the structure—and depoliticize the Court—once and for all—and without need to resort to a constitutional amendment.

Daniel Epps and Ganesh Sitaraman have proposed an even more radical expansion of the Supreme Court by making all 171 courts of appeals judges also simultaneously associate justices of the Supreme Court. The basic thrust of Epps and Sitaraman’s proposal is similar to mine—expanding the Court changes how it operates and would necessitate the use of a panel system. But their proposal would have the collateral effect of locking in the current composition of the courts of appeals, where a third of the judges are Trump appointees. With five-justice panels, this means a 60 percent chance that any random panel would have a Republican majority and a 15 percent chance that it would consist entirely of Trump appointees. The result would be a substantial initial partisan advantage for Republicans in a reform meant to make the Court less partisan.

The allocation of the bevy of new Court seats would be something for Congress and the president to work out informally, much the way the court of appeals nomination process works already. But there’s a fair and efficient bipartisan way to do it: Let Democrats and Republicans each pick half of the new seats. Let each side put up a slate of nominees and give the other side a limited number of “strikes,” much like in a jury selection. Then, for the remaining names on the slates, allow half to be voted on without a filibuster, and half subject to a filibuster. The process would ensure that half of the nominees would be consensus appointments, and while each party would be able to get some partisans on the Court, they would be partially neutralized by the panel system. In this arrangement, neither party is guaranteed an enduring advantage, and both sides can appeal to voters’ gut sense of fair play.

Depoliticizing the nomination process will not remove politics from the Court entirely. Some level of politics is inevitable in law. Political outlooks will still be a factor in the selection of justices, and a supersized Court will continue to struggle to deal with political cases like Bush v. Gore.

Political decisions, however, have even less legitimacy when they are produced by a naked partisan majority of justices selected during a previous political epoch. The random panel draw and greater turnover in a supersized Court mean that decisions in political cases are not preordained (encouraging parties to compromise) or subject to dead-hand political control. The winner of today’s ruling might lose a follow-up case before a different panel tomorrow. It’s not a perfect system, but it’s a better and fairer one than the current winner-take-all approach.

American society needs to dial down the heat of its politics several notches. Depoliticizing the Supreme Court is a good place to start.

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