Jamal Greene (Columbia University – Law School) has posted The Nonpartisan Case for Supreme Court Expansion (Harvard Journal of Law and Public Policy, forthcoming) on SSRN. Here is the abstract:
It should be a shared premise across the ideological spectrum that individual Supreme Court justices hold too much power. The only other public officials in the world with a justice’s degree of power and influence over the affairs of their country for as long as justices exercise it are dictators and monarchs. Of the many possible responses to this problem, among the most legally straightforward is Supreme Court expansion, which Congress may accomplish via statute. One of the main obstacles to expansion, however, is its partisan valence. This paper suggests expanding the Court via delayed onset to overcome the partisanship objection.
A larger court would diffuse the Supreme Court’s enormous power among a broader set of people, both reducing the amount of unaccountable power wielded by a single person holding life tenure and diversifying the bench more generally. A larger Court would bring the Supreme Court’s size in line with apex courts in other large democracies. In addition, a surprisingly broad array of structural and practical problems identified with the Supreme Court in recent years—from the justices’ excessive tenures in office, to its susceptibility to polarizing strategic litigation, to abuse of the emergency docket, to the broken confirmation process, to the lack of an enforceable code of ethics—would likely be mitigated, perhaps significantly, by a larger Court. Each of these issues should concern Americans regardless of where they sit on the ideological spectrum, and regardless of their assessment of the Court’s performance of its case work.
Highly recommended.