Recently the Legislative branch considered whether to try to expand the Supreme Court by adding 4 new seats to the Court to make 13 justices instead of 9 justices. The Constitution does not outline specifically how many justices must be appointed. Some have argued that this could "pack the court" with liberal justices. Others have argued that it might create a balance with the conservative-tipped bench presently in place.
Consider the following questions:
1) What are the pros and cons to expanding the Supreme Court, especially relating to its possible effects on judicial review? Give illustrative examples of what could happen. Argue for your assigned outcome.
2) Do you think the framers intended the Supreme Court to be expanded and or packed on one side or the other?
3) What can we learn from history about this? Has it ever happened before? If so, what was the net effect -- and why?
Sample Answer
The debate over "court-packing" (expanding the size of the Supreme Court for political ends) is one of the most contentious issues in American constitutional law. While the Constitution establishes the Supreme Court, Article III leaves the number of justices to be determined by Congress. This silence has allowed the Court’s size to fluctuate throughout history.The debate over "court-packing" (expanding the size of the Supreme Court for political ends) is one of the most contentious issues in American constitutional law. While the Constitution establishes the Supreme Court, Article III leaves the number of justices to be determined by Congress. This silence has allowed the Court’s size to fluctuate throughout history.
Pros and Cons of Expanding the Supreme Court
The primary impact of expansion relates to Judicial Review—the power of the Court to declare legislative or executive acts unconstitutional.
Pros (Arguments for Balance)
Restoring Democratic Legitimacy: Proponents argue that since conservative justices were appointed by Presidents who lost the popular vote or through "stalled" appointments (like Merrick Garland), the Court no longer reflects the will of the people. Expansion "corrects" this tilt.