Supreme Court Expansion
This is Joseph
Steve Vladeck has thrown down the gauntlet against Supreme court expansion with his four hard questions. They are good questions but I think that he is asking them when the hour is late. Far better when the house was not yet on fire.
In particular:
I think the problem here is that the options are now thin. If we look back just a few issues in Steve's newsletter we see:
Last year’s post explained that the Court set two fairly revealing records on its emergency docket during OT2024—with 140 full Court rulings on applications and 31 grants of emergency relief. OT2025 came very close on the former front, with 133 full Court rulings. The number of grants “dropped” to 21, but that’s still a remarkable number compared to what was par for the course as recently as five years ago (when the averages were closer to 70 full Court rulings and 8-10 grants). And as has been true during every recent term, the divisions on the emergency docket were, once again, homogeneously ideological.
These are not people interested in following norms and there has been a great deal of discussion about how many of the obvious solutions that sound good require constitutional amendments and, even then, might not apply to current justices. Look at the language in the 22nd amendment, included to avoid the question of retroactivity:
But the size of the court is absolutely something that can be changed. Akiva Cohen, a moderate if there ever was one, points out that the composition of the court is an issue:
This really is the problem. It is not that a "packed court" is about short term control of the agenda. It's about forcing a bipartisan solution by blowing up the institution, because we can all see where this is headed. And, while this point is too pessimistic, it's not exactly wrong, either:
Is there anything about the current behavior of any of the key actors that suggests a reverence for norms would stand in the way of raw power?
So maybe there is a better answer than increasing the number of justices? Josh Marshall has thought deeply about this issue and confesses to few good ideas.
If you don’t begin with an immediate increase in the number of justices, it’s not serious. Because you end up with a reform which might have a meaningful impact in 10 or 20 years and might never even properly come into effect. That’s a non-starter in terms of time to wait and actual effectiveness.
Which is a real issue. Slow burn reforms that arrive at some future date run the risk of allowing matters to deteriorate.
So what I want to know, instead, is what viable reforms would improve things soon (say in my lifetime) that would reduce the incentives for political action by the supreme court and make it act in a more opaque fashion that was much easier to predict from legal principles over partisan valance.
That would be a big step forward.