Do We Need 27 Supreme Court Justices?


There is nothing in the United States Constitution that says we must have nine Supreme Court justices.  What about 27?  Rutgers University law professor Jacob Russell Hale thinks it might be a good idea.  Here is a taste of his piece at Time:

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

Read the entire piece here.

2 thoughts on “Do We Need 27 Supreme Court Justices?

  1. Problem is, any enlargement WOULD be done to a landslide majority of Ideologically Correct.
    Especially in today’s hyper-polarized Idealist Generation politics.
    “To the Victor Belongs the Spoils.”


  2. I would be hesitant to support such an enlargement. As it stands the small number of SCOTUS justices makes the current selection process of presidential nomination and senate confirmation palatable to most Americans (though I have seen this sentiment changing).

    With such an enlargement, there will be arguments for the *election* of SCOTUS justices, or at least that “the people” should have more of a say in the judiciary.

    The US already made a critical mistake with the 17th Amendment; this would be yet another instance of cutting off our nose to spite our face.


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