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Packing the Supreme Court, explained

If Trump replaces Justice Ginsburg this close to the election, Democrats are discussing a bold response: adding justices to the Supreme Court—because nowhere in the Constitution does it say there must be nine.

Packing the Supreme Court, explained
[Photo: BrianPIrwin/iStock]

The U.S. Supreme Court hasn’t always had nine justices—it started with six, went briefly down to five, back to six, then seven, then nine, and, during the Civil War, ten. If Trump confirms a replacement for Ruth Bader Ginsburg and Democrats later regain the presidency and Senate, Democrats are threatening to change the number again.

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The Constitution doesn’t specify that the Supreme Court needs to be a particular size. The founders “knew the country was going to grow,” says Mark Tushnet, a professor emeritus at Harvard Law School who serves on the advisory board of Take Back the Court, an organization that aims to reform the judiciary. “They didn’t want to saddle the Constitution with a particular formulation. They could design a court that would fit the country that they were living in. But they didn’t know what was going to happen in the future and wanted to leave it open.”

[Photo: peterspiro/iStock]
The current size of the Supreme Court has been in place since 1869. During the Great Depression, after the court repeatedly struck down New Deal legislation, Franklin D. Roosevelt proposed “packing the court” with more justices. “There’s a subsurface argument that’s going to surface soon that, in fact, since the failure of the court-packing plan in 1937, a kind of constitutional convention has been created that you can’t change the size of the court merely for political reasons,” Tushnet says. Still, he says that the standard legal opinion now is that the president and Congress can choose to change the number of justices at any time they want.

There’s no reason that nine is a magic number. “If you look around the world at constitutional courts, the number varies between 7 and 15,” he says. “And courts with sizes larger than 9 manage to work as well as our court does. So as an issue of simply managing the institution, going from 9 to 11 or 13 probably shouldn’t be a difficulty.”

But making the change has an obvious risk. Democrats may be able to do it next year to try to rebalance the court ideologically, as a way to help correct for the fact that Mitch McConnell blocked Barack Obama’s attempt to appoint Merrick Garland. If that happens, Republicans could later do the same thing when they regain power, and the court could swell over time. (Something similar happened in Poland, where the government passed a law in 2018 forcing the retirement of several justices in its supreme court, and then appointed 27 new justices.) Samuel Moyn, who teaches jurisprudence at Yale Law School and history at Yale University, argues that it’s not a true solution.

“The first question is, what’s the goal?” he says. “Court-packing, in most of its versions, is an attempt either to put the court back the way it was, before Neil Gorsuch came, or it’s more radical, like what they’re doing in Poland, taking over the court and making it like an arm of the Democratic Party. My view is that both of those are bad goals, and that what we should really want is to make the court less significant in American politics, so we don’t have to have these cycles of converting national politics into a debate about which judges are going to make policy. Maybe judges shouldn’t be making as much policy.”

Other proposals involve adding term limits, so that each president automatically gets to make an equal number of appointments, instead of leaving that up to chance (though the Constitution says judges must serve for life, they could possibly be transferred to other courts). Moyn says this is the same kind of reform as court-packing, solving a short-term problem instead of a fundamental one: “They’re aimed at getting the people right. Not the institution’s power.”

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Rather than packing the court, Democrats could consider reforms such as requiring a new supermajority when the court rules that a law is unconstitutional. Six or seven justices would have to agree, instead of five, giving the court less power to invalidate laws—a power that the Constitution never explicitly gave it. “If we don’t like what the legislature does, we have to oppose it through getting our representatives in the legislature, not fighting over what judges have this extraordinary power to rewrite the law,” Moyn says.

That type of reform could also happen in addition to packing the court, something that Moyn believes is likely to happen. “It seems almost certain that if Ginsburg is replaced by someone on the right, and Joe Biden wins, and the Senate changes hands, there will be justices added,” he says. “But the question is whether that should be the end of the story.”

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About the author

Adele Peters is a staff writer at Fast Company who focuses on solutions to some of the world's largest problems, from climate change to homelessness. Previously, she worked with GOOD, BioLite, and the Sustainable Products and Solutions program at UC Berkeley, and contributed to the second edition of the bestselling book "Worldchanging: A User's Guide for the 21st Century."

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