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Does the Supreme Court Need More Justices?

By George Khoury, Esq. on August 03, 2018 | Last updated on March 21, 2019

Recently, the topic of increasing the number of justices on the High Court has come up again -- as it tends to every few years. And, naturally, there's no shortage of bad ideas.

The concept of court-packing involves Congress changing the rules to allow the president to appoint more justices. Currently, the president is capped at nine, but Congress could change that, and ideas abound. But perhaps the most troubling problem with a court-packing scheme like this would be the potential, and likelihood, of a snowball effect (on top of a slippery slope).

For instance, if the Republicans, who are in control now, were to do so, when the Democrats regained power, it's very likely that the same tactic would be employed to gain a liberal majority on the High Court. This process would continue to repeat until the High Court was unwieldy in size and a public joke.

High Court Politics

There's no doubt that the nomination of SCOTUS justices is political and heavily influenced by partisanship. But what's clear is that court-packing is not a solution to the partisanship, and could in fact make it worse.

Some pundits suggest that by increasing the size of the Court, and also restructuring the way the Court hears cases (i.e. justices could serve on smaller panels, akin to circuit courts), not only could more cases be heard, but it would lead to more partisan variance. However, this logic could just as easily backfire, leading to long administrative delays for a case to reach a final decision (particularly if panel decisions could be petitioned to be reheard en banc).

There are only nine justices for a good reason. And if the legislature does consider allowing presidents to nominate additional justices, it might be wise to follow the suggestion of some pundits and to allow the nomination of the additional justices in phases over the next several presidential terms.

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