THE BLOG
10/13/2014 09:32 am ET Updated Dec 13, 2014

Our Court Needs More Supremes

Significantly increasing Congress's ranks is a must if our republic is to experience better days, I asserted in my last post. But this remedy isn't sufficient -- not as long as a majority on the Supreme Court continues to undermine and undo legislative acts -- like sensible campaign finance reform -- that would reflect the will of most of the people but stymie the agendas of some Justices.

Take a look-see at Article III, Section 1, which among other things deals with our Supreme Court. If you've assumed that it stipulates that those who sit on our highest court must be the same number that starts on a baseball team, you've assumed wrong. We can have an unlimited number. We can raise the number of Justices right here, right now, by a simple majority vote of Congress.
During George Washington's presidency, there were seven Justices. In 1837, a majority in Congress voted to increase the number to nine. Then, in 1866, Congress reduced the Supreme Court to eight justices to protest President Andrew Johnson's move to nominate his attorney general to fill a vacant court seat. In 1869, Congress set the court at its current number, and since then, it has remained at nine, arguably to the detriment of our republic.

What would having more Justices achieve? Ideally, a Court with a greater plurality of perspectives, a greater depth and breadth of experiences, backgrounds, value systems and approaches to their duties. This will achieve greater diversity of judicial thought. No more stacking the deck one way or the other -- either with predictably liberal thinkers on one side or strict constructionists on the other, all of them judicial activists in their way. This in turn hopefully will lead to decisions from the Highest Court that are more in touch with our citizenry's, and our Founders', higher hopes for our republic.

But aren't Justices above the fray, paragons of virtue and objectivity, dispassionate dispensers of judicial wisdom? When you pinpoint more than a handful throughout our history who have striven for much less attained this ideal, let me know. Meanwhile, let's at least improve the odds that the Justices will act with our republic's best interests at heart by upping their numbers.

It just takes a majority vote in favor by Congress to bring this about. It almost happened once upon a time. In the mid-1930s, Franklin Roosevelt had the strong support of Congress as he launched progressive New Deal reforms -- only for the conservative Supreme Court to dismantle one New Deal initiative after another, declaring them unconstitutional. In response, FDR proposed to Congress a law that would enable him to appoint as many as six additional Justices. While Congress was considering the legislation, the Court underwent a striking about-face: the Justices -- fearing their individual power would be diluted if their numbers were increased -- reversed their earlier decisions against Roosevelt's programs. This paved the way for the New Deal, and FDR stopped his legislative push for additional Justices.

There have been no further attempts by presidents to change the number of Justices on the Court. So it's up to us ordinary Americans. Increasing the number of Supreme Court Justices -- say, by adding one Justice per presidential term -- in tandem with a much-expanded House of Representatives, will make these two branches far more likely to lend an ear to everyday Americans and, as a result, upend republic-freezing legislative and judicial factionalism. Members of Congress won't have the wherewithal to enact legislation to give the president authority to up the number of Justices unless we make it clear that we consider it a priority -- and that unless they commit to doing so, they won't get our vote next time around.

In an 1859 speech, Abraham Lincoln asserted that "(t)he people of these United States are the rightful masters of both congresses and courts -- not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." When our congresses and courts act in ways that sabotage our democracy, it's up to us ordinary citizens to make it clear who the boss is.