Assessing Non-Packing Rationales For Increasing the Size of the Supreme Court

In a recent Lawfare article I outlined the case against “packing” the Supreme Court, and explained why the Court’s recent decision in Louisiana v. Callais doesn’t justify such a measure. Court-packing is generally understood as an attempt to alter the Supreme Court’s ideological balance by increasing the number of justices. Thus, most current Democratic proposals would transform the current 6-3 conservative majority on the Court into a 7-6 progressive majority, by adding four justices.

But there are various non-packing rationales for increasing the number of Supreme Court justices. I sometimes see them brought in response to my criticisms of court-packing. In this post, I assess the most common of these arguments. In general, I think they are relatively weak. But, to the extent they have merit, they could potentially be addressed without packing the court, by means that ensure the new – larger court – would have roughly the same ideological balance as the old one. That would prevent the slippery slope escalation caused by court-packing would be likely to lead to destruction of judicial review. If you want to expand the Court, but oppose such compromise measures, that’s a strong sign that court-packing – not these other issues – is your main objective.

If your main reason for wanting to expand the court is to change its ideological balance, the points made in this post are unlikely to sway you (check out my various critiques of court-packing instead!). But if you do care about these other issues, read on.

The most often heard non-packing justification for increasing the size of the Court is the idea that we need to have thirteen justices because we now have thirteen appellate circuit courts. Thus, we should have one Supreme Court justice per circuit, as was the norm throughout much of the nineteenth century. For example, potential 2028 Democratic presidential candidate Pete Buttigieg recently stated that “Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary.”

The problem with this argument is that, as Josh Braver documents in an important article, the nineteenth century expansions of the size of the Supreme Court to match the number of circuits was primarily a result of the policy of “circuit riding,” under which Supreme Court justices routinely heard cases as circuit judges on “their” lower court. Circuit riding was a difficult and time-consuming responsibility, and one justice could not readily do it for two circuit at once (especially given relatively slow nineteenth century transportation). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory responsibilities of Supreme Court justices with respect to their assigned circuit courts are fairly minimal. Thus, it is not a great imposition for some of the justices to have to oversee two or more circuits rather than just one one.

Currently, two justices – Alito and Kavanaugh – each oversee two circuits, while Chief Justice Roberts handles three. I am skeptical either that this is an excessive burden on these justices or that it gives them way too much power relative to the other six. But if you disagree, there’s a simple solution that does not create opportunities for court-packing: increase the number of justices to 13 (one per circuit), but let the party that does not control the White House select two of them. In that way, both the conservative and liberal blocs on the Court would add the same number of justices.Thus, no packing, and no slippery slope escalation.

There may be some moderately complicated political maneuvering required to do this; the president and his party would have to credibly commit to nominating and confirming two justices chosen by the “out” party. But such political deal-making is common place. One way to do it would be for the president and the opposition party to agree on the four names in advance, and include a provision in the expansion law that ensures it will only go into force if all four of these individuals are nominated and duly confirmed within a certain period of time (say, within one year of the law’s enactment).

A second possible non-packing rationale for court expansion is the idea that we need  more justices so the Supreme Court can hear more cases. Justice Brett Kavanaugh and a number of outside critics of the Court believe it hears way too few cases, and should take many more. Perhaps they are right. I don’t have a strong view about what the optimal total number of Supreme Court cases,  though there are certainly some specific areas where I would like to see the justices do more (e.g. – constitutional property rights cases).

But even if Court should take more cases, it is not clear that it needs more justices to do so. The Court currently hears only about fifty to sixty cases  on the regular docket per year, including just 56 last year (not counting “shadow docket” cases that don’t get full briefing and oral argument). But, as recently as the early 1980s, it was hearing 160 cases per year. And there were only nine justices then, too! Hearing more cases would actually be easier today than it was then, since modern technology (most notably specialized electronic databases and now AI) makes it easier to quickly research  and analyze relevant legal issues.

The reason why the Court hears so few cases is not because we have too few justices, but because the justices have near-total control over their docket, and (with, perhaps, a few exceptions) they don’t want to take more. There is no guarantee this would change merely by increasing the size of the Court. The new justices may be happy hearing relatively few cases, just like the current ones. Fewer cases means more free time and longer summer vacations! Who wouldn’t want that?

If Congress wants the justices to hear more cases, it could more effectively achieve that goal by increasing the scope of the Court’s mandatory jurisdiction. Before the enactment of the Judges Act of 1925, the Supreme Court had a sizable mandatory jurisdiction, and thereby heard more cases. Congress could repeal or modify that legislation, thereby increasing the justices’ workload.

There is some irony here. If, like many left-liberals, you think the Court does a terrible job on most important cases, you may not actually want them to hear more! Perhaps it would be better if they decided even fewer issues, thereby leaving more under the control of lower federal courts (which are, on average, somewhat more liberal than the present Supreme Court majority).

Even if you do want the Court to hear more cases, and you are persuaded that increasing the number of justices is the best way to achieve that result, it can be accomplished without changing the Court’s ideological balance. Simply adopt the ideologically balanced expansion outlined above. If you think 13 justices are not enough, the same approach can be used to increase to 15 or even more (with 15, the president’s party and the opposition party would each get to choose three new justices).

Finally, it is sometimes argued that a larger court would lead to a higher quality of deliberation and perhaps a greater diversity of experience among the justices. I am by no means sure this is true. For example, it does not seem like bigger state supreme courts make better decisions, on average, than smaller ones. The same is true for en banc circuit court rulings in circuits with more judges, as opposed to those on circuits with fewer judges.  At present, the total number of judges in a circuit varies from six in the First Circuit, all the way up to 29 on the Ninth. I see little, if any, correlation between numbers and quality here.

On the other hand, I am also not certain that nine is the optimal number of justices, as opposed to 11, 13, or 15. Once again, however, the number can be increased without changing the ideological balance, by the procedure already described.

As noted in my Lawfare article and other writings, I am far from an uncritical admirer of the current majority on the Court, and I think they get some important issues wrong. I oppose court-packing because it would make things much worse than they are now, not because the status quo is anywhere near ideal. I also favor a number of reforms that do not require changing the number of justices, most notably term limits.

I am not endorsing the status quo here. This post merely shows that we probably don’t need to expand the size of the court to achieve various other improvements in the Court’s work product. And to the extent that expansion is desirable, it can and should be done without creating opportunities for court-packing.