Modifying the Supreme Court – Quantity vs. Quality

You must admit that party leaders are a courageous bunch. It takes a lot of nerve for one of them to accuse another group of being unethical and politically biased. Irony aside, since Congress will never discuss term limits for itself, that’s one of the solutions that is often raised to “fix” the Supreme Court. Another suggestion has been expanding the Court (and packing it as well).

EXPANDING THE COURT

In recent years, it has become increasingly popular to call for expanding the Supreme Court… particularly when a decision doesn’t go one’s way. While expanding the number of District and Appellate Courts based on population growth, geographic territory, and judicial efficiency merits discussion, none of those elements are relevant to the Supreme Court.

The number of Justices needs to be sufficiently large to promote a variety of legal perspectives and vigorous debate when merited, but small enough to reach a conclusion in a reasonable amount of time. The Court is also best served by an odd number to avoid unwarranted deadlocks.

While the Constitution of the United States is silent as to the number of Justices that are required, federal law is not. The Court has been functioning with nine Justices for 157 years when that number was officially set by the Judiciary Act of 1869, signed into law by President Ulysses S. Grant (April 10, 1869). It was memorialized in Title 28, Section 1 of the United States Code, which states: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate Justices, any six of whom shall constitute a quorum.”

The current number of Justices (9) represents a rational number for reaching an informed, well-debated decision. The good news is that a constitutional amendment is not required to change it. The bad news is that a constitutional amendment is not required to change it.