Sen. Joe Manchin has already publicly proclaimed he will not allow Democrats to “stack” the Supreme Court. In fact, he was invited by a mysterious organization to back an amendment called “Keep Nine,” which would permanently set the highest court in the land to nine justices.
The number of justices on the Court has fluctuated since the beginning. It’s gone as high as 10 and as low as five. Six was a common number for a while, then it bumped to nine, and that’s where it’s been for more than 100 years. But the number of justices is not set in the Constitution. In the past, the mere threat of court packing was enough to move an otherwise obstinate Supreme Court; FDR famously had to threaten to pack the Court in order to get a conservative SCOTUS to stop striking down his New Deal legislation.
At the moment, the Supreme Court has already been “stacked” by conservatives. Since 2000, two Republican presidents filled five seats; the only Democratic president in that time span, Barack Obama, filled only two seats. Those numbers might not seem impressive, but think about it proportionally: George W. Bush and Obama each nominated one justice per four years (as each was a two-term president), which seems pretty fair. Trump, on the other hand, made three Supreme Court appointments in four years, which has allowed him to push the Court even further right. According to Pew Research, Trump has appointed more federal appeals courts judges than any president since Jimmy Carter, which has allowed him to stack the lower federal courts as well.
As much as we wish the courts were apolitical, judges and justices are predictably partisan. As Constitutional law professor Eric J. Segall explains, the courts — including the Supreme Court — have always been political bodies. That’s part of the reason the number of justices has fluctuated throughout the years: Presidents and Senates increase or decrease the number of justices to gain or maintain political power.
Even though the Supreme Court isn’t a nonpartisan body, it generally remains effective when its stances stay slightly left or right of the national center; people on the opposite side of the aisle may disagree with a ruling, but they can usually live with it. But as Segall said, when the Court gets too far ahead or lags too far behind the will of the American people, that’s when threats of court packing and restricting the Supreme Court’s jurisdiction come into play. Segall predicts Trump’s court packing has created a SCOTUS way more conservative than the median conservative voter — not to mention the majority liberal populace — which may prove extremely problematic.
Segall had many good points to make about the Supreme Court, but there was one point he made that stood out: “Eight is great.” Instead of nine justices, he proposes the Supreme Court should consist of a balanced eight justices — four conservative and four liberal. This even number would force at least one justice to vote across party lines on every case in order for a final ruling to be made.
We will never be able to keep the highest court in America entirely apolitical, so perhaps the best solution is to keep the Court balanced so the it can’t be stacked, either by number or partisan lean. In the meantime, we should avoid creating an amendment that sets the number of justices, because the threat of court packing is sometimes the only tool available to break a political stalemate.
