Now an Excellent Time to Add 4 more Justices of the Supreme Court

Today, Senators Edward J. Markey (D-Mass.), Tina Smith (D-Minn.) and Elizabeth Warren (D-Mass.), and Representatives Jerrold Nadler (NY-12), Hank Johnson (GA-04), Cori Bush (MO-01), and Adam Schiff (CA-30) announced the reintroduction of the Judiciary Act of 2023 that would expand the Supreme Court by adding four seats to create a 13-Justice bench. 

Ed Markey, US Senator for Massachusetts, 5/16/24

Since several Supreme Court (SCOTUS) judgments have not gone their way, many Democrats have declared a crisis and called to add several new Justices to SCOTUS.  The Judiciary Act of 2023 sponsored by 7 Democrats calls to add 4 new Justices to SCOTUS.  Since the conservatives currently have a 6-3 majority on the Court, adding 4 new Justices would, since the Democrats held a majority in the Senate at that time, by an astonishing coincidence, allow the Democrats to obtain a 7-6 majority on the Court, enabling them to get their way again and quiet down a little for a little while.  Note, however, that when the very liberal “Warren Court”, presiding for 15 years (9/5/53—6/23/69), enabled Democrats to dominate the conservatives and get their way, there was no crisis.  That is, there is only a crisis when conservatives hold a majority on the Court.  The conservatives cannot, obviously, be allowed to get their way because they are “deplorables.”  When Democrats, who are always sweetness, sunshine and fairness, hold a majority on the Court, there is no crisis and everything must be left the way it is.

Perhaps the Democrats have something here.   Since Trump, running on what the New York Times calls an “ultra-conservative agenda,” is the first Republican to win the popular vote since 2004, and since his Republican Party has, on that platform, completed the trifecta, winning not just the presidency but the House and Senate as well, 2015 would be an excellent time to bow to the will of the people and add 4 new SCOTUS Justices.  Upon taking office in Jan. 2025, President Trump should, therefore, immediately begin the process to add 4 new SCOTUS Justices, one after another, not all 4 at once, during his first two years.  Alternatively, he could commit to add two new Justices in his first two years, 2025-27 and another two in his second two years, 2027-29 when the composition of the Senate might be different than it currently appears to be.

Although Trump could, theoretically, add these new Justices as “recess appointments”, without obtaining the “advice and consent” of the Senate, this should not be done because it would unfairly shut the Democrats out of the process.  Rather, Trump should insist that the 4 new justices should be confirmed through the normal rigorous Senate confirmation process that will give the Democrats ample opportunity to investigate, interrogate, smear, and threaten the new prospective Justices under oath in a series of four separate successive Senate Confirmation hearings.

If the Democrats think this is too favorable to the Republicans, who now enjoy a 53-47 Senate majority, they could insist that Trump can add 2 new SCOTUS judges in his first 2 years and 2 more in his second two years when, as a result of the 2026 elections, the composition of the Senate will likely be different.  If the Democrats think that even this is too favorable to the Republicans, they could demand that Trump will add two new SCOTUS Justices during his next 4 years and that 2 more will be added under the next president (elected in 2028), no matter to which Party he or she belongs.  In other words, if the Democrats, who can run on the issue in 2028, win the next presidential election, then they can add 2 new SCOTUS Justices during their new Democrat president’s term (2029-2033).

Of course, what the Democrats would want to do is add the new 4 Justices at a time that is favorable to their Party.  The Democrat’s Judiciary Act of 2023 to add 4 new Justices was proposed in 2023 when Democrats held a slim majority in the Senate.  However, that would be patently unfair because the circumstances, a Democrat majority in the Senate, were known at that time.  The present suggestion avoids that unfairness because it is not known what the composition of the Senate will be after the 2026 or the 2028 elections.  If the new Trump administration is a bad as the Democrats claim it will be, there is an excellent chance that Democrats will hold a majority in the Senate after 2026 and again in 2028.

What cannot be allowed as manifestly unfair, but what the Democrats wanted, is that the 4 new Justices be added at a time, e.g., 2023-24, when the composition of the Senate favored them.  That unfairness can be avoided if both Parties agree NOW, when the composition of the Senate in 2026 and 2028 cannot be known, to agree to one or another version of this plan (perhaps the last version is most palatable to Democrats because it gives them the greatest chance to change the composition of the Senate before the 2 new Justices will be confirmed in the Senate confirmation process).

One essential party of this plan is that both Parties must agree NOW that the number of SCOTUS Justices should then be left at 13.  One does not want the process to degenerate into the absurd practice, making a mockery of SCOTUS, that when the Democrats hold the Senate majority, they add 4 new Justices to give themselves a majority, and when the Republicans retake power, they add 4 new Justices to give themselves a majority, and so on ad infinitum.   Indeed, in that ridiculous situation, there would be no limit to the total possible number of SCOTUS Justices, rising perhaps to 39 or 99, thereby making SCOTUS start to resemble another elected legislative body.  We already have a bicameral congress and don’t need another chamber.

There is, however, a way to avoid all this uncertainty, complexity, and unpleasantness, namely, that both Parties agree NOW to leave the number of SCOTUS judges at nine as has been the practice since 1869.  It has worked pretty well for the last 150 years.  This will, of course, be unpleasant for conservatives sometimes, as when the liberal Warren Court did pretty much whatever it wanted from 1953-1969, and unpleasant for “liberals” as it is at present when the conservatives hold a 6-3 majority.  Since, however, in the US system as specified in the Constitution, there is always another election coming up, the aggrieved Party can always hope that if they convince the voters to give them a Senate majority, they can add a few more acceptable SCOTUS Justices and return the country to what they regard as legal and constitutional normalcy.

In my view, this latter respect for tradition, leaving the number of SCOTUS Justices at 9, is obviously the fairest and sanest position, which is precisely why the Democrats want to change it.  The Democrats will never agree to add new Justices to SCOTUS in a way that will not give them the advantage, that is, never agree to a truly fair process.  The whole obvious point of the Democrat’s desire to change the number of SCOTUS Justices is obviously to return their Party to the majority on the Court, nothing more.

Agree/Disagree with the author(s)? Let them know in the comments below and be heard by 10’s of thousands of CDN readers each day!