The Supreme Court is facing a crisis of confidence.
Contrary to the founding principles of our democracy, the Supreme Court has greenlighted partisan gerrymandering, gutted the Voting Rights Act, and allowed unlimited sums of money from corporations and wealthy donors to flood our elections. The Federalist Society and other corporate-backed organizations have spent decades packing the courts with right-wing legal minds, creating a corporatist majority that votes with their corporate backers at every opportunity and will influence policy for generations to come.
It is not constitutionally mandated that the Supreme Court consist of nine justices. Congress has changed the number of justices on the Court before and it can do so again. Congress set the number of justices at nine in the Judiciary Act of 1869 in order to match the number of federal circuit courts. Today, however, there are thirteen circuit courts, resulting in a growing caseload that only nine justices cannot manage. The justices have taken fewer and fewer cases over with time, as the caseload exceeds their capacity.
Meanwhile, former Senate Majority Leader Mitch McConnell and Senate Republicans have breached the norms of Supreme Court appointments three times in the last five years. From February 2016 until April 2017, the Court had just eight justices after McConnell refused to hold a confirmation vote for Merrick Garland and held the seat hostage through the 2016 election. McConnell and Senate Republicans later rammed through the confirmations of Justice Brett Kavanaugh in 2018, despite credible allegations of sexual assault and perjury, and Justice Amy Coney Barrett in 2020, just eight days before Election Day.
Remedying these growing disparities means expanding the Supreme Court. In our increasingly legally complex society, stalled cases and increased partisanship serve only to squander the trust we place in the nation’s highest court.
Board Chair and Senior Legal Advisor, Free Speech For People
As noted in the email above, the number of justices on the Supreme Court was set at nine over 150 years ago. That was an entirely different country than today’s country. Also as noted above the SCOTUS was set to match the number of federal circuit courts at that time.
Today we have 13 circuit courts, yet we still have 9 SCOTUS justices. Events of the past decade have highlighted just how much SCOTUS needs to be brought up to date.
In 1869, the US population was about equal to that of just California today – a little over 38 million. There were 37 states and 243 members of the House of Representatives. The senate of course had 74 members.
As the country has expanded everything else has had to accommodate changes except SCOTUS. It is way beyond time for the Supreme cCourt to be brought up to date. Plus a reminder of the check and balance system may be in order.