Increasing the number of justices on the Supreme Court of the United States has become a major talking point lately. However, what are supporters of an expansion trying to achieve?
While other candidates are running to fight the one percent or restore America’s diplomatic ties, Pete Buttigieg is running to expand the Supreme Court. While the mayor of South Bend, Indiana is not alone in this policy goal, he is pushing it the most.
Buttigieg’s current plan is to increase the number of justices from nine to 15. Five would be affiliated with the Democratic party, five more with the Republicans. They would then pick another five, who would be politically unattached.
His goal is to depoliticize the bench, yet he would seek out justices who are partisan. The reasoning is that the court has become too political. While this argument has some truth to it, perhaps the real culprit is how Americans see the court, not how the court actually is.
In a poll conducted by SurveyMonkey and NBC News last year, sixty percent of the respondents said the Supreme Court nominating process has become too partisan. This result is not surprising. When Justice Scalia died in 2016, the open seat became a major selling point for both Donald Trump and Hillary Clinton’s campaigns.
Many Republicans do not support the 1973 Roe v. Wade ruling. Overturning the decision, which dealt with the right to privacy and abortion, is a major policy issue for the party’s base.
Throughout Trump’s campaign, he promised to only nominate pro-life judges to fill Scalia’s seat. However, while the Supreme Court can, and has, overturned former precedents, their supposed political affiliation does not guarantee that they will do so. The party that their nominating president represented does not predetermined their decisions on certain topics.
Role of the Court
The Supreme Court’s job is to interpret the Constitution, not to be a policymaker. Whether they view it as a living document or exact and word-for-word is up to them. They have made mistakes, such as Plessy v. Ferguson in 1896, but have also found the Constitution to be protecting essential rights, like their ruling in 2015’s Obergefell v. Hodges.
At a University of Minnesota Law School lecture last fall, Chief Justice John Roberts reaffirmed his belief in the importance of judicial independence. “Our role is very clear. We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them,” he said.
He reminded the audience that the court ultimately serves the nation, not a party. Unlike politicians, who often rely on party support in campaigns, Supreme Court justices serve life-terms. They are not elected, but instead nominated and approved by the other two branches of government.
Because they serve life-terms, a justice’s time on the bench is never under one party. When control of Congress or the White House changes hands, the make-up of the bench still remains the same.
There is less pressure on them to conform to party expectations. Unless they die, like Scalia, or retire, as Justice Kennedy did last year, they can only be removed through impeachment. Similar to impeaching the president, it is a lengthy process that requires a majority vote in both the House and the Senate, and therefore highly unlikely.
With little risk of losing their job, many justices adhere to the historic role of the court. In some opinions, they have suggested changing the law, but have then stated that it is not their place to create policy.
While some in Congress push for more justices, there is no guarantee that they will not raise it to 11 and add more liberal judges to regain the majority. In fact, suggesting that we need more judges aligned with the Democratic party is dangerous and irresponsible.
It shows a lack of understanding of the importance of an independent court. The change would place greater pressure on justices to uphold their nominating party’s beliefs. The Supreme Court would become nothing more than court of puppets.
Failure to Solve Main Issue
It seems that many politicians believe that creating a clearly partisan court is the way to prevent a partisan court. Although there would be more justices, there would be a greater emphasis on their political identities.
The fact is partisanship on the bench is a major issue. Yet the divide comes most from expectations, both of the people and the politicians, not the justices’ actual behavior on the Supreme Court.
Former Justice Anthony Kennedy was nominated by President Ronald Reagan, a very conservative commander-in-chief. However, Kennedy was not a very conservative Supreme Court justice. Until his retirement in 2018, he was the swing vote in many cases. He even wrote the majority opinion for Obergefell v. Hodges, which found that any state not recognizing same-sex marriage was violating the Fourteenth Amendment.
The last time the Supreme Court was expanded was 1869. Packing the court does not solve any problems. In fact, it degrades the purpose of the judicial branch. It is an independent intermediary. Expanding it and making it more partisan could lead to a stronger, irreversible majority of either party in the future, which would put the country in great danger.
If anything, Buttigieg’s proposal is frankly confusing. The five non-political justices would only serve for a year, chosen two years in advance to avoid packing the court for specific cases. And, if the 10 permanent justices cannot pick a group of five, the court who simply not hear cases that term. If that happens, important questions that may never come up again will be lost in the wayside. The American people would suffer even more than they think they are today.