A pair of law professors argued in a recent Bloomberg column that packing the U.S. judiciary with 15 justices is a necessary move to reform the institution and does not constitute “court packing.”
Northwestern’s Tonya Jacobi and Loyola’s Matthew Sag said there were good reasons to want to “pack the Court,” but it said Democratic efforts to increase the Court’s size to 13 in a clear attempt to gain a 7-6 majority would only “further politicize the judiciary.” But in the same breath, they said expanding the court was “vital.”
“Court packing would further politicize the judiciary and invite retributive court packing when Republicans inevitably regain power,” they wrote. “Nonetheless, court reform is necessary, and expanding the court is vital to fixing what is wrong with the judiciary.”
“The good news for those favoring court packing is that institutional reform requires expanding the court to 15 justices, not 13. Understanding why requires learning just how broken the Supreme Court currently is.”
Jacobi and Sag said the Supreme Court does not hear enough cases to adequately fulfill its oversight function as the final court of appeal. It also, they said, doesn’t hear cases on vital public issues like police reforms.
They recommended random panels of five judges to hear cases, except for “very important ones” that would be heard by all 15. It was unclear how one would appeal a decision made by one-third of the Supreme Court, particularly if the random assignment put five of the more conservative or liberal partisans on one key issue.
“It is time to put the Supreme Court to work for the American people. Real reform is required, and for that we need a court of 15 justices, with the justices sitting in three panels of five judges on any normal case. On very important cases, the court could vote to sit all 15 justices together en banc,” they wrote.
“A Supreme Court panel system with random assignment will help overcome another problem: ideological extremism. As politics has become more polarized, so too has the Supreme Court. But no judge likes to be overturned by their peers, and so the panel system will encourage the justices to moderate themselves.”
Presumably, if the professors had their way, President Biden and a Senate Democratic majority could put six new liberal justices on the court, swaying the majority to 9-6 and providing liberal majorities on most of the randomly assigned “panels.” Biden previously called President Franklin D. Roosevelt’s efforts to expand the Court’s size to 15 a “bonehead idea,” but he now faces left-wing pressure to pack the Court.
Conservatives didn’t take kindly to the column.
“When your argument rests on ignoring the definition of the word you’re debating, if often means you’re making a poor argument,” conservative media critic Drew Holden tweeted.