The number of justices on the Supreme Court is not a major concern for most Americans. Instead, the focus lies on whether the court functions fairly and maintains trust. Currently, this trust is deteriorating due to fears that the court is becoming a political tool rather than an impartial entity.
These fears have a basis. Legislation proposing to increase the number of justices has been repeatedly introduced by Democrats. The aim is to counteract what is viewed as an illegitimate conservative supermajority. In response, Republicans have considered preemptive measures, especially as they witness Democratic efforts to eliminate the filibuster to do this.
The filibuster has been weakened by both parties to facilitate judicial appointments. Its remnants may not withstand current political cycles. Each party’s threats seem to validate the other’s actions, leading to an escalation that could result in a Supreme Court bereft of independence, dynamically increasing its number of justices based on the latest election outcomes.
Progressive Democrats have introduced the Judiciary Act several times, aiming to expand the court and empower the president to fill new seats immediately. This strategy, however, has the potential to backfire. If Republicans hold the presidency and Senate, the bill could establish a lasting conservative supermajority. Even the bill’s sponsors would oppose their own legislation under such circumstances, highlighting a significant contradiction that could be exploited for a deal.
The suggested solution involves a compromise. Republicans should propose two bills: a straightforward version of the Democrats’ expansion bill and a constitutional amendment to set the court’s size at 11 justices. The amendment would allocate two new seats to the next two presidents, irrespective of political affiliation. This approach promotes stability rather than securing a conservative majority.
The proposal conveys a clear message to Democrats: contribute to the amendment, or witness the passage of your expansion legislation in favor of Republicans. This is a sincere offer, not a mere bluff. Fixing the number of seats at 11 would remove the court’s size from political maneuvering. A constitutional amendment offers enduring stability, unlike statutes that can be easily overturned.
Public opinion drives this initiative forward. Polls indicate Americans prefer a structurally stable Supreme Court, even amidst disagreements over its decisions. In governance advisory roles, similar dynamics appear when everyone’s trust in institutional rules falter, leading to negotiations.
The Supreme Court has maintained a stable nine-member composition for 150 years, enduring many controversial rulings. It is crucial for the court to retain its independence to navigate partisan pressures. Losing this stability means jeopardizing both the court’s integrity and the nation’s continuity.
Despite the declared commitment of politicians to uphold the court’s role in balances, political courage remains uncertain. However, the right deal could appeal to their instinct for survival, potentially guiding the Supreme Court through today’s challenges.
Marc Hodak specializes in corporate governance. Having taught at NYU Stern and SMU, he advises global organizations on governance and institutional incentives.