An enlarged Supreme Court could hear more cases, make federal law more consistent
Eight months before the 2016 presidential election, Mitch McConnell said that he cares what U.S. voters think. Mr. McConnell insisted that he couldn’t replace Antonin Scalia without voter input about who would select the justice.
Today, within weeks of the next presidential election, McConnell proves that he lied, and he really can’t care less what you think. He has a Supreme Court to pack.
But it does not have to be like this, where about half of our polarized country feels — and might honestly be — disenfranchised at any given moment. Course correction must start with bipartisanship, though, which can start by enlarging the Supreme Court’s full complement — for argument’s sake, say to 17.
Supreme Court composition is not constitutionally set. Congress originally set the Court’s complement at six, a chief justice and five associates who all also “rode circuit” around the Republic, hearing intermediate appeals. Not until 1869, in a sixth iteration, did Congress decide on nine justices.
Franklin Roosevelt famously proposed a “court-packing” plan, trying to thrust six friendly justices onto the Court to defend his New Deal programs. Roosevelt’s bald power grab was rightly defeated.
This plan is different.
First, there must be bipartisan approval not just to increase court size, but on who will fill those slots. The only way to ensure compromise is to require super-majority approval for the first eight appointments. Unless one party somehow takes 60 Senate seats, members of both parties will have to agree on appointees.
Second, this plan does not rely on one larger Supreme Court bench. Instead, several smaller panels will hear cases by lottery, on a case-by-case basis. Then, if a majority of justices agree to re-hear divisive arguments, the “en banc” (entire) court could choose to reconsider.
This is how U.S. courts of appeals work, where smaller panels from the full court (usually three judges) decide most appeals. Michael Flynn’s prosecution offers an example of this process working.
After the Department of Justice asked the D.C. federal District Court to dismiss Flynn’s prosecution, Judge Emmet Sullivan ordered a hearing and appointed a lawyer to argue for continuing Flynn’s case. Flynn’s counsel asked D.C.’s federal Court of Appeals for a writ of mandamus, an extraordinary order to require the case’s immediate dismissal.
Two of the original three appeals judges ordered that extraordinary dismissal. But the full D.C. Court of Appeals chose to rehear this extraordinary request, and the eight other appellate judges unanimously reversed their two colleagues.
An enlarged Supreme Court can work much the same way, while doing more work than today’s Court can. Seventeen justices hearing cases even five justices at a time could multiply the Court’s workload, allowing thousands more annual pleas for a day in Court. More Supreme Court decisions can also help harmonize federal law nationwide, where substantive rights can sometimes depend on which “circuit” hears a claim.
The High Court’s capacity to hold “en banc” hearings about our most divisive arguments would add some good chaos to the decision-making. Every lawyer is trained to find numerous different viewpoints for every question. Seventeen lawyers answering those questions will lead to geometrically more considerations than our current, nine players.
Appointing judges will always be politically fraught. The appointment process is where the (Article I) Senate and (Article II) President primarily get to check and balance the (Article III) judiciary. That check-and-balance improves with 17 Supreme Court justices, who will ostensibly generate a higher turnover rate, and appointment opportunities, than our current Court. As a consequence, our federal law could become more consistent across the land.
Jay Hurst is an attorney based in Lexington and Durham, N.C. He concentrates on criminal sentencing, appeals, post-conviction matters and the Freedom of Information Act. Reach him at jayhurst@jayhurst.net.