After the passing of Justice Scalia in 2016, Senate Majority Leader Mitch McConnell announced that the Senate would not consider any nomination until a new president was elected. Democrats were incensed — there was no precedent for McConnell’s decision, which was an exercise of raw political muscle. McConnell’s rationale was that no nomination in a presidential election year should be considered until the people choose a president. President Obama’s nomination of Merrick Garland expired with the 114th Congress. When Justice Ginsburg passed away in September of an election year, McConnell announced his intention to fill the seat before Inauguration Day and shift the court to the right — a flagrant violation of the rule he crafted four years prior. This constitutional hardball was met with calls on the left to “pack the courts” and add two or four justices to either restore a one-seat conservative majority or form a liberal majority.
Institutional problems require institutional solutions. I propose that a 10-justice Supreme Court is the best way forward. First, providing a Democratic president with the opportunity to appoint a liberal justice would help compensate for the rapid confirmation of Judge Barrett (in opposition to the 2016 McConnell Rule) and restore the Court to a more politically-even footing. Second, narrow majorities on an even-membered Court would not issue rulings with only a thin veneer of popular legitimacy, as has been the case with recent 5-4 cases. And third, the mechanics of a deadlocked Court would bolster the Court’s legitimacy by forcing it either to ignore cases it cannot resolve or to decide them on narrow grounds — this would stave off the kind of judicial activism that can, at best, merely undermine the rule of law, and at worst, undermine the legitimacy of both the activist goal achieved and the Court as an institution.
A ten-justice Court, after the inauguration of the next Democratic president, would restore balance to the judiciary. A court dominated by conservatives or liberals is at risk of being seen as a partisan institution and can opt for partisan goals in lieu of even justice under law. At the same time, the Court will soon be 6-3. Its legitimacy in the eyes of the left will be mostly lost, especially after the Garland and Kavanaugh nominations. The Republicans played hardball, but for Democrats to escalate the war by packing the Supreme Court would delegitimize the Court further. Adding a single justice would allow a Democratic president to bring the Court to a 6-4 conservative majority — a single dissenting conservative keeps the majority’s worst impulses in check, while the right maintains a solid majority without the temptation to expand the Court that would exist if Democrats packed it. It’s a compromise that might leave both parties dissatisfied, but one with the power to lower the stakes for future Supreme Court confirmation questions.
In the 2019-20 term, only 23% of cases were resolved by a 5-4 split. Those included highly controversial cases on topics ranging from reproductive rights to immigration and administrative law. But of those split judgments, 77% were decided on ideological lines. Over the last twenty years, the public has grappled with the legitimacy of 5-4 ideological decisions including Citizens United v. F.E.C., Obergefell v. Hodges, and Bush v. Gore. Split cases along ideological lines are dangerous for a Court with “neither FORCE nor WILL, but merely judgment”: The more the people view the Court as a partisan institution, the more its legitimacy erodes, and the more the political sphere will be tempted to turn the Court into a partisan football. Court packing solely for partisan gain is a natural consequence when the public or political elite loses faith in the Court’s ability to judge fairly. But a 6-4 conservative Court will offer decisions made with a sturdier margin, and each justice in the majority will have the power to narrow the decision by threatening to defect and deadlock the judgment.
Suppose the Court is expanded to 10. Suppose Chief Justice Roberts, a member of the 6-4 majority, does occasionally swing left. The Court deadlocks, 5-5. What happens? The answer points to the heart of why an even-membered Court is necessary for even justice. In the event of a deadlock, the lower court’s decision stands and no precedent is set. But justices go to great lengths to avoid this result — and in order to cobble together a bare majority, the ultimate decision is narrow. A ten-justice Court would rule more narrowly, more often. Occasionally, it would deadlock. Sometimes, it would decline to take up a case it knows it lacks a clear majority to decide. A Court like this will be less judicially active, more deliberative, and more deferential where it needs to be. It will not be a force for progress, as in the 1960s. But it will also be less of a reactionary bastion able to roll back American rights.
Institutional reform can be dangerous. In Poland, a key feature of democratic erosion was the PiS party’s modification of the judiciary. And in 1937 in the United States, President Roosevelt’s attempts to pack the Court backfired (although some literature disagrees). But adding a single justice to the Supreme Court would be a modest reform capable of depoliticizing the Court without amending the Constitution. A ten-justice Court committed to impartial, even justice under law is necessary if faith in the sole ostensibly apolitical branch of government is to be restored.