Scotus expansion without court packing

David Karol at Monkey Cage discusses the Supreme Court:

The broader point is that the whims of one unaccountable person, whatever their age, abilities or ideology should NOT matter so much in a democracy.

Karol proposes eighteen-year terms, which reduce the length of time that the “whims of one unaccountable person” matter but do not reduce the relative importance of that person’s whims on any given case or in any given year. But court expansion would reduce the “cross-sectional” power of a justice and thus reduce the associated concern for the health of like-minded justices, severely curtailing the chance of a judicial Weekend at Bernie’s.

Of course, it is not politically feasible to give any president multiple new nominations, but it is possible to expand the Court to eighteen members without packing and with minimal disruption to the status quo:

  1. Give each current justice two votes and each new justice one vote: when a current justice vacates a seat, the president and the Senate replace the current justice with two new justices; when a new justice vacates a seat, the president and the Senate replace the new justice with one new justice.
  2. Let’s say that we want an eighteen-member Court immediately. Let each sitting justice nominate one new justice. The sitting justices would have a strong incentive to nominate a candidate with similar judicial and ideological views.

Eighteen-member or eighteen-vote Courts would have a greater potential for tie votes, but this is less a problem than a feature with positive consequences, since a majority of the full Court is now a 10-to-8 supermajority, which makes it slightly more difficult for the Court to overrule a lower court or alter its own precedent.


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