The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some progressive pundits and policymakers have embraced the idea of increasing the number of Supreme Court justices in order to offset the confirmation of Justices Neil Gorsuch and Brett Kavanaugh and enshrine a liberal majority on the Court. To some, this is a proper response to the Senate's failure to consider President Obama's nomination of Merrick Garland to replace the late Justice Antonin Scalia.
Unlike other Court reform proposals, such as the imposition of judicial term limits, increasing the size of the Supreme Court could be achieved by ordinary legislation. Article III of the Constitution does not specify how many justices the Supreme Court must have.
My co-blogger Ilya Somin has argued against these court-packing proposals on this blog. It turns out that Justice Ruth Bader GInsburg agrees with him.
In a recent interview with Nina Totenberg, Justice Ginsburg explained that increasing the number of justices would be a bad idea and could further undermine the Court's legitimacy.
From the interview:
"Nine seems to be a good number. It's been that way for a long time," she said, adding, "I think it was a bad idea when President Franklin Roosevelt tried to pack the court." . . .
"If anything would make the court look partisan," she said, "it would be that — one side saying, 'When we're in power, we're going to enlarge the number of judges, so we would have more people who would vote the way we want them to.' "
That impairs the idea of an independent judiciary, she said.
The whole interview is worth a listen.