Packing the Supreme Court

Marshal H. Tanick, BridgeTower Media Newswires

“Th' supreme coort follows th’ iliction returns.”
— Humorist Finley Peter Dunne, Mr. Dooley’s Opinions (1900)

The outcome of the election probably has shelved, at least for the time being, the issue of enlarging membership of the U.S. Supreme Court. That concept of “court packing,” had taken on a major political hue in the wake of the appointment of new Justice Amy Comey Barrett.

A substantial number of Democrats support the concept; nearly all Republicans, many independents, and even some Democrats, are opposed. That leaves, as is often the case in politics, the undecided at the crux of the controversy.

But if the Republicans retain their slender majority in the Senate and within only a narrow margin for Democrats in the House of Representatives, the proposition seems stillborn, regardless of who occupies the White House.

Politics aside, history and pragmatism may make the proposition a prudent one.


Not novel

Expanding the size of the U.S. Supreme Court would not be that novel, although it certainly would be running into strong headwinds. The size of the tribunal in the nation’s capital has varied from six at its outset down to five and up to 10 justices, one for each federal circuit, numbers that occasionally invited, but rarely produced tie votes.

Some Republicans, incidentally, have advocated the reverse: court unpacking. During Barack Obama’s presidency, a diverse handful of GOP senators, ranging from Ted Cruz of Texas to Arizona’s John McCain, suggested a smaller Supreme Court. And one, Tom Cotton of Arkansas, advocates cutting the number of lower federal court jurists for fear that Obama or his successor, then seeming to be Hillary Clinton, would fill the existing or future vacancies.

But the number of high court jurists has been stabilized by federal statute, 28 U.S.C. § 1, since 1869 at the current number of nine, apart from vacancies due to resignation or death. Its mandate that the high court “shall consist of a Chief Justice … and eight associate judges.”


Roosevelt’s reasons

The last overture to change the law and add justices, Franklin Delano Roosevelt’s effort to boost membership, has given the concept a bad taste and a troublesome term, “court packing.”

It came about as FDR’s response to some rulings by the conservative-leaning court, composed primarily of elderly pre-New Deal Republican appointees overturning certain of his New Deal programs. The group, known by the “Four Horsemen” included Pierce Butler, Minnesota’s first high court jurist. Under the ill-fated FDR plan, the court would be packed with a new justice, up to a half-dozen, for every justice who was 70½ years old (remember that number) who had been on that bench for at least a decade. It was viewed negatively by the public, including many in Roosevelt’s own Democratic Party, and was soon defeated in Congress.

But the short-lived plan had some significant effects. One was that the court, perhaps fearful of changes to its composition, veered off in a different direction and soon, with the defection of an early version of a “swing justice,” Owen Roberts, thereafter upheld three key pieces of New Deal legislation, including the Social Security Act, National Labor Relations Act, and other economic regulatory measures central to the recovery from the Depression.

Those important judicial victories were balanced against major GOP successes in the ensuing off-year congressional elections, winning an extraordinary 72 new seats in the House of Representatives, one-sixth of that body, and gaining seven new senators. These triumphs effectively brought Roosevelt’s domestic legislation to an end, coupled with the increased attention and resources devoted to foreign affairs and military matters as World War II loomed in Europe and the Pacific.


Legal Luddites

While Roosevelt’s “packing” proposal then and the one being aired now by the modern version of his party have political roots, expanding the number of Supreme Court justices seems sensible to some for wholly apolitical reasons of practicality.

The main one is the favorable effect it would have on the court’s productivity. With rare exceptions, such as litigation between states, the court picks and chooses which cases it deigns to hear among the 7,000 to 8,000, or more, petitions for appellate review filed each year. For many years after World War II, extending for several decades, the tribunal accepted and decided 300 or more of about 3,000 to 4,000 annual applications, about 80% civil lawsuits and 20% criminal.

But that figure has precipitously declined in recent years as the court during the regime of Chief Justice Roberts over the past 15 years has been accepting and deciding 75 or fewer cases each term. The past COVID-effected term dipped below this figure, with the justices issuing decisions in just 61 cases, less than 1% of the total appeals brought to them, and 11 fewer than the 72 decisions in the previous 2018-2019 pre-COVID term.

Thus, while the number of requests for hearings has doubled in the last few decades, the number of cases accepted and decided has shrunk remarkably by about 80%. The justices have thus far accepted fewer than three dozen cases for its 2020-21 docket and seems on pace to end up deciding about the same number of cases, perhaps even more, than its recent terms.

This is not to suggest that the current justices are not working hard. But they have more resources than ever before, three or four high-caliber law clerks each, along with technologically speedy devices that facilitate the work of even the most Luddite of the jurists. They also seem to be spending more time on outside ventures than their predecessors, with half of them writing books, presumably for lucrative advances and royalties, along with teaching, public speaking gigs, and occasional engagements with media talking heads, plus a three-month summer vacation. Good work if you can get it!

If they have the time and energy for these activities, some would say, they could spend some more of both churning out additional rulings.


Prudent ‘packing’

A prudent solution to the workload (or workloaf) issue at the U.S. Supreme Court may lie in the expansion of the number of justices, i.e., court-packing. It should be done for reasons of improving the performance of the court, not for politics.

If the number of justices were increased to 15, the figure that seems to be a fixation of court-packers from FDR to today, the court could sit in rotating panels of five jurists, much like most intermediate appellate courts at the federal and state levels. Or, it could have two seven-member panels with one alternate in the event of unavailability, recusal of jurists, or other openings. This would allow the tribunal to hear many more cases, perhaps double or treble the current number — and still have time to go on book tours and talk shows.

The “packed” tribunal also could provide for cases of extraordinary national significance or uncertainty to be heard in full 15-member sessions upon agreement of a majority of the justices, another practice followed by the lower federal appellate courts.

There is undoubtedly other tinkering that could make an expanded Supreme Court more efficient and effective in adjudicating legal disputes. Those tweaks can help advance justice based on prudent principles, not politics.

Court packing, to be sure, is not a panacea for what ails the nation or the judiciary. There would be added costs involved in having more judges and their associated personnel. (Do they really need four clerks apiece?) But in an era when the federal government hands out billions with no regard for the deficit, what’s a few more million or, as Republican Senate Minority Leader Everett Dirksen once remarked in successfully seeking greater congressional staffing: “A billion dollars here, a billion dollars there, and pretty soon you’re talking real money.”

It may be well worth it to advance the interests of justice. It also would do away with those divisive, closely-decided 5-4 rulings unless, of course, they are replaced with 8-7 narrowly determined cases.


Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.