11 Or 13 Justices Start An Arms Race. 100 Justices Might Actually End It.

For years, the idea of expanding the Supreme Court has been dismissed as a fantasy among “serious” thinkers. However, with it becoming ever more clear that the Supreme Court has gone completely off the rails and is now a purely partisan entity, rather than one doing neutral adjudications, more people are open to the idea of “fixing” or “reforming” the court in some form or another. Plenty of reforms are regularly suggested, from term limits to strict ethics and abstention rules. But one that gets the most attention is expanding the court.

This one is also the most controversial. A new Marquette poll found the public evenly split, 50-50, on expanding the court. That’s way behind the 79% who support term limits, but it’s hardly a fringe position.

Law professor Steve Vladeck, whose work we regularly discuss and cite, recently posted what he called “hard questions about court expansion,” which I think cover the key criticisms most people make about expanding the court. As regular Techdirt readers know, I advocate for expanding the Court to 100 Justices, with cases being heard by random panels of nine, with the possibility for some sort of larger “en banc” review as well.

Part of this also has to involve a more balanced system for bringing the number of Justices up to 100 without it being initially overweighted with ideologically biased Justices to one side. The most obvious initial system is to elevate a bunch of existing appeals court judges (currently there are 179 such seats), but doing so in a manner that requires some form of bipartisan consensus (at least one Senator from each party?) to agree to the elevation. Yes, such a system risks deadlock, but if there’s broad agreement that the process won’t tilt the Court toward either side, there’s at least a path to making it work. We have seen something kind of like this work with the FTC and the FCC and their bipartisan commissioners — at least until Donald Trump blew that up and basically fired all Democratic Commissioners (minus the one still hanging on at the FCC, because she’s needed under the law to allow the FCC to operate). And, yes, this ideologically captured Supreme Court blessed Trump doing so, but that’s all the more reason to set up a stronger system to ensure a Supreme Court that can’t become ideologically captured.

This can easily be combined with a term limit structure, but I’m not convinced term limits make that big a difference under my plan, other than changing the political calculus of when to retire. And with 100 Justices, that calculus matters a lot less, because no single retirement can swing the Court.

I think this type of expansion deals with nearly all of the “negatives” people warn about when it comes to expanding the Supreme Court. Let me explain why, and then see how it holds up against Vladeck’s “hard questions.”

1. By expanding to 100 Justices you massively dilute the power and importance of any single Justice. So much of the issue now is that each Justice has so much influence and power that every single one of them matters a massive amount. Each Justice individually has a strong likelihood of changing the way fundamental parts of America work, with effectively no true recourse. Expanding the pool to 100 Justices means that none are nearly as important.
2. Expanding to 100 Justices, rather than the much more conservative suggestions of 11, 13, or even 21, likely defuses one of the first concerns people raise: that each party, whenever it takes control of Congress, will simply expand the Court again in its favor. I agree that that is a very real risk if the expansion is just a few Justices. Then “packing” the Court becomes practical in some form. Leaping from nine to 100, with randomized nine-judge panels makes future packing much more difficult. It’s not impossible, but the much larger pool with the panel selection process makes it way more difficult to consistently bias decisions to the extreme level we see today. A smaller number makes it easier.
3. Adding an en banc review process creates an additional check on consistent biases. En banc already exists in the appeals courts, and this could follow the Ninth Circuit’s model, where review goes not to the “full” court but to a larger, more randomized panel (the Ninth Circuit isn’t fully randomized, but the Supreme Court could be). Law professor Paul Collins has discussed the potential benefits of having cases handled by three-Justice panels at the Supreme Court with the possibility of alternative panel reversal, and many of his arguments for why that could limit extreme ideological capture would apply to my scenario as well.
4. If this system were combined with term limits, and a better way to select the Justices that diminishes partisan bias, then it would limit a setup where one party could overwhelm the Court with too many Justices with a strong ideological bent, but rather would push for more Justices who can get support from both parties. I may have my own ideological biases, but any system designed to stock the Court with only Justices who believe in specific ideological beliefs will be seen as illegitimate. But a 100-Justice Supreme Court with an actual mix of Justices and beliefs is much harder to insist is ideologically biased towards either side, making it less a target of ideological capture.
5. Side benefit: having way more Justices means they can handle way more cases more fairly, increasing access to justice for many parties who are effectively squeezed out of the Supreme Court by the heavy focus on so-called impact litigation, brought by parties seeking to use the Supreme Court as a tool to route around Congress. It might also help deal with Vladeck’s other big issue: the weird recent infatuation of the Court to make consequential decisions on the shadow docket with no reasoning.

I’m sure there are risks. But a massive shift in how the Court itself functions, rather than a small increase designed to swing the ideological balance, has a much better chance of surviving long-term without triggering partisan swings every few years. The goal of the 100-Justice system isn’t to swing the ideological balance. It’s to rethink how the Supreme Court functions to make it way more difficult for it to become ideologically captured in any way. And with such a big change, it also acts as a bit of a shock to the system, getting people to rethink the function of the court, to bring it back to being a true judicial body, rather than a political body.

Now, on to Vladeck’s “hard questions”:

• How do we avoid touching off a race to the bottom, where each time one party controls the House, Senate, and presidency, it expands the Court to ensure an ideologically and politically sympathetic majority?

I think my explanation above gets at this point directly. Merely expanding the Court by two or four Justices likely does set off just such a “race to the bottom” for each time Congress switches hands. But by massively shifting the setup of the Court, greatly diminishing the importance of any single Justice, we can avoid the value of constant one-upping the previous party in control, and reset the judicial balance.

• If a race to the bottom is unavoidable, how do we avoid further (and potentially fatal) erosion of public confidence in the Court—which will quite transparently be little more than a lever of power for whichever party last had such a trifecta?

First off, I think with my system, a race to the bottom is absolutely avoidable! And, again, there are other elements in my system that I think should increase public confidence in the Court. It diminishes the risk of ideological capture of the Court, it enables greater effectiveness and throughput of the Court, and includes a safety valve in the en banc system as well.

• If eroding public confidence in the Court is a feature, and not a bug, how do we insulate against the same erosion of public confidence in lower federal courts?

Again, I think my plan doesn’t erode public confidence at all. If anything, it should rebuild it, by making the institution more resistant to ideological capture. It could also help restore trust in the lower federal courts because the Supreme Court itself should be more effective and able to take on more issues, which gives the lower courts more clarity, as opposed to the vague hand-waving we’ve gotten used to under Chief Justice Roberts.

• What is the case for why expansion is a better way to achieve the desired reforms than alternatives that would (or, at least, should) avoid many of these forward-looking concerns?

Vladeck has outlined a number of alternative proposals for Supreme Court reform in his own work, and we can address those and some of the other most popular suggestions.

Term limits by themselves seem to do very little to increase public confidence in the Courts. It still allows for ideological capture based on the party in power. Yes, it gets rid of a few very old cranks, but that’s a short term fix if they are just replaced by the next MAGA crank in line. A massive expansion with a push for some level of bipartisan consensus again seems like a much bigger lever towards resetting the Court.

The ethics enforcement system seems like it barely helps at the margins of the most corrupt scenarios, but does little more to help in other ways.

“Jurisdiction-stripping” would block the Court from hearing certain kinds of cases, but I’m not sure how that helps, other than potentially increasing the power of Congress in a way that could further unbalance our three branch system of government.

Vladeck also has suggested systems of increased accountability:

There are many examples, but these would include: (1) expanding the Court’s mandatory docket; (2) establishing an Article III Inspector General; (3) codifying existing standards (as opposed to raising the standards) for emergency relief; (4) increasing public congressional oversight of the Court (including of its budget); and (5) on a more basic level, heightening congressional engagement in the Court’s day-to-day work.

The paper linked above also includes specific docket reform proposals that… are… fine? But I’m not sure any really move the needle on institutional trust.

Finally, to Vladeck’s long-term focus on the shadow docket, I’d be open to a specific reform on that as well, requiring that the shadow docket be explicitly tied to actual emergency situations, designed to focus on keeping the status quo in such an emergency, and only up to the point when a full briefing/hearing process can lead to a full decision on the merits. That alone wouldn’t fix the Court’s reputation problem, but it would be a useful addition.

But, on the whole, part of the argument for switching to the 100-Justice system is the very fact that it’s not an incremental reform, but a rethinking of how the Supreme Court itself works in a way that shocks the system out of the mess it has currently become.

Just like no voting system is perfect, no system for selecting a Supreme Court will be perfect either. But I remain fairly convinced that a 100 Justice Supreme Court would be a big improvement over what we have today, and clearly better than almost all other suggested reforms, including (importantly) the much more narrow plans to increase the number of Justices by two or four, which would set off the very concerns Vladeck outlines in his questions.