Having said all of that, there are actually several straightforward, nonpartisan reasons for increasing the entire federal judiciary and adding additional Supreme Court justices.
The last major expansion was 30 years ago with the Judgeship Bill of 1990. Since then, the population of the United States has grown from roughly 249 million to just over 330 million. With ever more litigants and ever more cases, the country needs more judges.
The judiciary itself said as much in a report released this summer as a statement before the Senate Judiciary Committee. “The effects of increasing caseloads without a corresponding increase in judges are profound,” wrote Judge Brian Miller of the U.S. District Court for the Eastern District of Arkansas on behalf of the Judicial Conference of the United States.
He continued: “Delays increase expenses for civil litigants and may increase the length of time criminal defendants are held pending trial. Substantial delays lead to lack of respect for the judiciary and the judicial process. The problem is so severe that potential litigants may be avoiding federal court altogether.”
Using a formula tied to caseload per court, Miller recommended an additional 65 district judgeships. This, he said, was “far fewer judgeships than the caseload increases and other factors would suggest are now required” but would represent a substantive improvement over the status quo.
In addition, a growing and diversifying country should see itself reflected at every level of the federal judiciary. More judges means more opportunities for representation, both for district and appellate courts and for the Supreme Court. With two or four or even six additional justices, lawmakers could shape the court to look a little more like America as it is.
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There’s an obvious concern here — tit-for-tat.
What is to stop a future Republican majority from expanding — or shrinking — the courts in turn? The answer is nothing. And I’m not sure there should be. If Republicans win the White House and control of Congress, then they should have the right to govern, and if governing means changing the composition of the court, they should have the right to do so.
Much more important than somehow constraining future Republicans is working to make our democracy more fair, with equal representation, where one person means one vote. Winning power in Washington should require as close to a popular majority as possible. If Republicans can win one, then it’s their ballgame, as long as the public sticks with them.
It is also not clear that an 11- or 17- or even 27-member Supreme Court is necessarily a bad thing. With more members, individual confirmation battles would be less heated and consequential. And tied even tighter to ordinary politics, the court might be more circumspect about striking down laws by duly elected lawmakers. The promise of tit-for-tat may actually be the thing that lowers the temperature of court battles, which might make it possible for both sides to find a new equilibrium.