Senator John McCain made minor headlines this week by stating that a Republican Senate might well be justified in refusing to confirm any nomination that a president Hillary Clinton might make to the Supreme Court. The only problem with such a statement is that it does not go far enough: The Senate should decline to confirm any nominee, regardless of who is elected. More than that, it is time to shrink the size of the Supreme Court.
Congress should pass a law reducing the Court’s membership to six Justices rather than nine — a return to its original size — and in so doing both take the question of Supreme Court appointments off the table for this election cycle and also thereby reduce the capability of the Court to engage in judicial activism harmful to the Constitution. And if the president vetoed such a bill, the Senate should accomplish the same thing by acting on its own, as an exercise of its “advice and consent” power.
And so liberals and conservatives fight to the death over judicial nominations in order to inflict more of their preferred harm on the other side and to fend off the enemy’s aggressions. No one much seems to think about ways to reform the way the Court as an institution is constituted so that it is less able to inflict harm and so that the stakes of confirmation battles are less enormous. And no one seems to think about ways to keep either of these bad candidates from making appointments to the Court.
It is time to shrink the stakes by shrinking the Court itself. Bluntly put, the Supreme Court should be smaller so that it can do less harm. There are two routes to this goal. First, Congress could pass a simple bill to allow the Supreme Court’s membership to gradually decrease to six justices as justices retire or die — returning the Court to its original size when established by the first Judiciary Act of 1789. Alternatively, in the event of a veto, the Senate could adopt a standing rule concerning its own “advice and consent” power that achieves the same thing: no more confirmations until the Court dips below six.
The second excellent reason to shrink the Court is that it would reduce the Court’s capacity to do damage to the Constitution. How would that work? Simple: A smaller court means diminished judicial activism. As the Court’s size shrinks, activist majorities become mathematically harder to put together. Four votes out of seven is harder to achieve than five of nine. Four out of six becomes harder yet. With a Court of six, major changes in interpretation of the Constitution and federal laws would require a two-thirds majority rather than a 5-to-4 squeaker — the margins by which the Court upheld Obamacare, created a right to same-sex marriage, and reaffirmed Roe v. Wade. As at present, ties would yield no precedent but merely affirm lower courts’ rulings, with more limited effect. Fewer justices thus means less judicial activism, at least at the Supreme Court level.
The membership-attrition, activism-reduction effect has already occurred to a limited extent with eight justices on the Court instead of nine following the death of Justice Scalia in February. The last Supreme Court term saw several major cases decided extremely narrowly — and some essentially not decided at all — rather than produce ties. This left some legal disputes to be worked out in different ways, which is all to the good. The eight-member Court kicked a few constitutional cans down the road, and the nation is no worse for it. Other tie votes left lower courts’ decisions standing, avoiding 5–4 national “landmark” decisions of doubtful correctness and durability that would have provided flash points for ongoing wars over control of the Court. Law professors and activists may bemoan this result. Let them moan: A lower court precedent does less harm than a nationwide one.
Even where the Court engaged in shameless judicial activism last term (as in the Texas abortion-clinic regulation case and the Texas race-preferential college-admissions case), it took a five-vote majority out of eight, rather than nine. (In those cases, Justice Scalia’s vote would not have made any difference.) Usually, that is a harder majority to achieve. And as noted, attrition makes activist majorities increasingly harder to forge. The situation only improves as the Court dips from eight robes to seven to six. And right now, the three oldest Justices — Ruth Bader Ginsburg (83), Anthony Kennedy (80), Stephen Breyer (78) — are all judicial activists, of various stripes, meaning that attrition is likely to lead to a less leftist Court.
Shrinking the Court would also thwart the possibility of politically motivated activist retirements. Justice Ginsburg, a hard-left activist, plainly is now just waiting for the next Democratic administration to retire. Kennedy and Breyer also might time retirement decisions to further their ideological goals. They should be denied the opportunity to try to game the system. Congress should tell the Justices to retire when they’re ready to retire — period — because their seats won’t be filled in any event.
It is entirely proper for Congress to adjust the size of the Court either to check judicial power or to check executive appointments.
Can Congress (or simply the Senate) constitutionally do this? Absolutely. Nothing in the Constitution specifies the size of the Supreme Court. The power to structure the composition and jurisdiction of the federal judiciary is in large measure a power held by Congress. There is nothing magical about the number nine for Justices. Historically, as noted, the Court started with six. The number of justices has bounced around from six to seven to nine to ten, back down to seven, and back up to nine again.
Moreover, it is entirely proper for Congress to adjust the size of the Court either to check judicial power or to check executive appointments. History shows that Congress has done both. In 1863, Congress increased the Court’s size to ten in order to give President Abraham Lincoln the opportunity to appoint more pro-Union judges likely to uphold Union war measures. Equally plainly, Congress voted to reduce the Court’s size to seven justices in 1866, in order to deny Lincoln’s successor, the aggressively incompetent and pigheaded Andrew Johnson (sound familiar?) any opportunity to appoint justices who might vote to invalidate Congress’s Reconstruction acts.
To be sure, manipulating the size of the Court too greatly could allow things to get out of hand. Franklin D. Roosevelt’s notorious “court-packing” plan, which would have increased the size of the Court to 15 justices, was rightly shot down: It would have permanently diminished the Court’s power by swamping its membership, and set a bad precedent for further such packing. If 15, why not 21, or even 37? In this regard, however, Court “un-packing” is hugely different from Court packing. It’s easier to restore seats, once the dust has settled, than to reduce a behemoth back to an effective size.
The Court might well behave better with six souls rather than a nattering nine. In one of his memorable last dissents, the late Justice Antonin Scalia last year prophesied that, with each decision seizing power from the people, the justices were moving “one step closer to being reminded of our impotence.” Reminders are useful. A statute shrinking the Court is an important symbolic reminder of Congress’s various powers to check and balance an overactive federal judiciary.
We are at a singular moment in American politics, where neither party’s presidential nominee is considered trustworthy. Neither Hillary Clinton nor Donald Trump can be trusted with Supreme Court appointments — Clinton because of her ideological extremism and Trump because he is simply an entirely untrustworthy, unreliable, dangerous demagogue inclined to rely on his own bad personal instincts and whims. The solution is simple: deny the opportunity to both of them; and let the Court un-pack for a while.
— Michael Stokes Paulsen is university chair and professor of law at the University of St. Thomas, in Minneapolis. He is a co-author, with Luke Paulsen, of The Constitution: An Introduction.