Supreme Court Reform

Currently, the Supreme Court of The United States has 9 justices and has effectively remained at that number since The Judiciary Act of 1869. Since then, the population of the US has increased nearly tenfold, the volume of cases has grown dramatically, and laws and government institutions have become far larger and more complex. We are past due for an expansion of the Supreme Court.

The US currently has 11 regional circuit courts of appeal plus the District of Columbia Circuit Court of Appeals and the Federal Circuit Court of Appeals. I propose that the goal should be to have 2 associate justices “representing” each regional circuit and 1 chief justice who presides over both the District of Columbia Circuit and the Federal Circuit. Mechanically, this would work by giving each president 2 associate justice appointments per Congress (effectively 1 appointment per year) plus a chief justice appointment when the seat is vacant. Hearings for new associate justice appointments would be led by the Senators representing the states in the circuit to be represented by the appointed justice, further helping to reduce politicization of Supreme Court justice appointments. The circuit selected for a given appointment would be the circuit that has been represented by the fewest number of associate justices for the longest continuous time. If all circuits have 2 justice representatives, the most senior associate justice will be “replaced” by the next appointment for their respective circuit. The Constitution prevents the removal of a justice if they have demonstrated “good behavior”, so what would really happen during “replacement” is that the most senior associate justice would take on a new title: Senior Justice. Senior justices would maintain their salaries for life and serve on lower courts by designation. Temporary associate justice vacancies could be filled by senior justices until they are filled by appointment. If no associate justices step down, pass away, or become otherwise unable to serve, the shortest effective “term” would be 22 years for associate justices before designation as senior justices. A redistribution of states within circuits to even out populations and number of senators per circuit would be a reasonable addition to this piece of reform legislation.

A Supreme Court with up to 23 Justices is far more flexible in its duty, and arguments could be made to expand it even further. There’s no need for the entire Court to preside over every case, so a larger Supreme Court could accept more cases, further normalizing its role as a body that regularly settles disputes and evolves with our modern, ever-changing world.