Can Democrats Increase the Supreme Court’s Size After the Predicted Conservative Majority?
Given that the Supreme Court will have a 6-3 conservative majority for the foreseeable future, can Democrats increase the number of Justices above 9 if they win both chambers of Congress and the presidency?
The Possibility of Court Packing
If Democrats win both chambers of Congress and the presidency in the 2022 election, it would be a significant shock if they do not attempt to alter the composition of the Supreme Court. In fact, I believe this move is long overdue.
By refusing to confirm or deny Merrick Garland and quickly confirming Amy Coney Barrett, the Republican Party (GOP) has essentially stacked the deck in their favor. The rationale for packing the Supreme Court is a common response to such provocations and has precedent in American history.
The Statutory Structure and Justification
The original structure of the Supreme Court was designed to correspond with the Federal Circuit Courts of Appeals. Initially, there was one Justice for each Federal Circuit Court of Appeals. Some sources suggest there were either 5 or 7 Justices, later expanding to 9. However, the number of Federal Circuit Courts has grown since then, creating an imbalance.
Increasing the size of the Supreme Court would address several critical issues:
Restoring the 1-to-1 ratio of Justices to Federal Circuit Courts as the original intent.
Un-doing the perceived and very real injustice to all non-conservative Americans when McConnell unfairly stole Obama's SCOTUS picks for Trump, leading to a dominance of a legal philosophy that does not reflect the actual makeup of the American people.
Allowing the court to handle a larger number of cases. With 13 Justices, cases could be heard by a combination of 5 justices or the full court, potentially tripling the number of cases heard each session and reducing the backlog.
Moreover, not increasing the number of Justices and allowing only a limited number of cases to be heard may create an unconstitutional chokepoint where justice is rationed and denied to those who are entitled to a full hearing.
The Current Political Landscape
While I cannot predict the future, it is highly probable that Democrats will indeed win the 2022 midterm elections and control both chambers of Congress. This opens the door for significant legislative reforms, including changes to the Supreme Court's composition.
However, the current political landscape is murky. Democrats are sometimes criticized for lacking the courage to take bold actions, much like Republicans are accused of lacking ethics. Regardless, the issue of increasing the size of the Supreme Court is one that merits serious consideration.
In conclusion, given the current landscape and the anticipated conservative majority on the Supreme Court, it would be wise for Democrats to consider packing the court to ensure a fair and balanced representation of the American people. This move is justified by historical precedent and the need to address the imbalance currently present on the Supreme Court.