In Defense of the “Team of Nine”

By Nicholas Williams
Nicholas Williams is a freshman in the College of Arts and Sciences at the University of Pennsylvania, planning on majoring in political science.

At his confirmation hearing in September of 2018, then-Judge Brett M. Kavanaugh said that, if confirmed, he would “always strive to be a team player on the Team of Nine” [1]. Since his confirmation hearing and subsequent confirmation, many Democratic presidential candidates have been open to expanding this “Team of Nine,” including Elizabeth Warren [2], who has recently overtaken Biden for the top spot in the Democratic primary, according to recent polls [3]. Warren claims that such court-packing efforts would “depoliticiz[e]” the Supreme Court [2]. While Warren is correct that the Supreme Court is becoming increasingly politicized, expanding the Supreme Court is not the answer to this problem.

Recently, Supreme Court nominations have been front and center in American politics. After the passing of Justice Antonin Scalia, former President Barack Obama nominated Merrick Garland to the Supreme Court [4]. Senate Majority Leader Mitch McConnell took no action on Garland’s nomination, leaving the seat vacant for the remainder of 2016 [5]. 

After President Donald Trump won the 2016 election, he nominated Neil Gorsuch to assume Scalia’s seat [6]. Democrats then filibustered Gorsuch’s nomination, causing McConnell to invoke the “nuclear option” and change the number of votes needed to invoke cloture on a Supreme Court nomination from 60 to 51 [7]. Gorsuch was subsequently confirmed on a 54-45 vote split largely along party lines [8]. However, by replacing a conservative justice in Scalia with another conservative in Gorsuch, the Court’s ideological balance remained relatively similar [9].

After Justice Anthony Kennedy retired, Trump nominated Kavanaugh to fill his seat [9]. This was seen as a much bigger change in the Court’s ideological balance, with Kavanaugh, a reliable conservative, replacing Kennedy, a relatively conservative justice, but one who tended to vote with liberals on certain key issues [10]. Kavanaugh was confirmed by a margin of 50-48, the smallest margin of confirmation for a Supreme Court Justice in the modern era [11].

It must be stated that the Supreme Court is a unique institution in American government. Out of the three branches of government, it is the only one that is not elected by the people, either directly or indirectly. The executive branch has the power of enforcement, and the president is in charge of enforcing the Supreme Court’s rulings. There have been times in the past where the president has ignored the Supreme Court’s decision, such as when President Andrew Jackson ignored the ruling of Chief Justice John Marshall in Worcester v. Georgia (1832) [12].

Thus, the rulings of the Supreme Court rely upon the executive’s enforcement and the compliance of state and local governments. Because the job of enforcing and implementing the Supreme Court’s decision ultimately belongs to locally elected officials, it is thus of the utmost important that the public at-large sees the Court as legitimate. If the Court is expanded solely in order to reach certain ideological decisions, ordinary citizens will no longer see it as a nonpartisan, law-interpreting body. They will instead see the Court as a pawn beholden to one of the two major parties, based on whatever the current ideological balance of the Court is at the time.

Such “court packing” has been done before. The size of the Court changed several times between passage of the Judiciary Act of 1789, which mandated six Supreme Court justices, and the Judiciary Act of 1869, which established a nine-member Court. This number has remained unchanged for the past 150 years [13], and the result has been a stable judiciary.

The most famous unsuccessful court-packing plan was proposed by Democratic President Franklin D. Roosevelt. In the face of the Supreme Court knocking down many pieces of New Deal legislation, Roosevelt wanted to expand the Court to 15 justices [14]. To add six liberal justices to the Court would have not only remade the Court for Roosevelt’s tenure; it would have caused a leftward shift that would make the Supreme Court a liberal institution in perpetuity. Thus, the Court would always be seen as a rubber stamp for any liberal legislation or cause. Seeing it as the nakedly partisan power grab that it was, Congress, which Democrats controlled by a wide margin, rejected the plan [13]. Ever since, no president or Congress has seriously considered changing the size of the Supreme Court.

Which brings back us to today. The idea that expanding the Supreme Court would “depoliticize” it [2], as Elizabeth Warren claims, is laughable. Expanding the Supreme Court for the sole purpose of appointing two liberal justices would only entrench the idea that justices are no more than biased politicians in robes.

This is not to say that the Supreme Court has not already suffered in terms of its legitimacy in recent years. Only 38% of Americans express a “great deal” or “quite a lot” of confidence in the Supreme Court, as of 2019 [15]. That figure has stayed relatively constant, though, for the last fifteen years. Adding justices to the Court risks having that number dropping even further. And if Americans do not have any faith in the Supreme Court, then why should the people that represent them enforce those decisions?

Anyone who seriously cares about the Court more than the partisan effects of its rulings should agree that the Court must remain at nine justices. And the addition of Kavanaugh has not shifted the Court dramatically far to the right, at least so far. Out of the 5-4 decisions that ideologically split the Court in the 2018 term, only 50% had the five Republican-appointed justices in the majority and the four Democratic-appointed justices in the minority [16]. The other half of such decisions all saw one Republican-appointed justice join the four Democratic-appointed justices. This is in stark contrast to the 2017 term when, with Justice Kennedy on the Court, all of these 5-4 decisions had the five Republican-appointed justices in the majority with the four Democratic-appointed justices in dissent.

The American judicial system, at every level, rests upon the belief of the citizens that its decisions are legitimate. Thus, in order to maintain this legitimacy, the Supreme Court must remain at nine justices. Democratic presidential candidates  should listen to the words of Justice Ruth Bader Ginsburg: “Nine seems to be a good number” [17].

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Citations:

[1] Mauro, T. (2018, September 05). Kavauagh Touts “Team of Nine.” Justice Holmes Saw It Differently: “Nine Scorpions in a Bottle.” Retrieved from https://law.stanford.edu/press/kavanaugh-touts-team-of-nine-justice-holmes-saw-it-differently-nine-scorpions-in-a-bottle/
[2] Everbett, B. and Levine, M. (2019, March 18). 2020 Dems warm to expanding Supreme Court. Retrieved from https://www.politico.com/story/2019/03/18/2020-democrats-supreme-court-1223625
[3] 2020 Democratic Presidential Nomination. (2019, October 05). Retrieved from https://www.realclearpolitics.com/epolls/2020/president/us/2020_democratic_presidential_nomination-6730.html
[4] Eilperin, J. and DeBonis, M. (2016, March 16). President Obama nominates Merrick Garland to the Supreme Court. Retrieved from https://www.washingtonpost.com/world/national-security/president-obama-to-nominate-merrick-garland-to-the-supreme-court-sources-say/2016/03/16/3bc90bc8-eb7c-11e5-a6f3-21ccdbc5f74e_story.html
[5] Demirjian K. (2016, March 16). Republicans refuse to budge following Garland nomination to Supreme Court. Retrieved from https://www.washingtonpost.com/news/powerpost/wp/2016/03/16/republicans-refuse-to-budge-following-garland-nomination-to-supreme-court/
[6] Davis, J. and Lander, M. (2017, January 31). Trump Nominates Neil Gorsuch to the Supreme Court. Retrieved from https://www.nytimes.com/2017/01/31/us/politics/supreme-court-nominee-trump.html
[7] Davis, S. (2017, April 06). Senate Pulls ‘Nuclear’ Trigger to Ease Gorsuch Nomination. Retrieved from https://www.npr.org/2017/04/06/522847700/senate-pulls-nuclear-trigger-to-ease-gorsuch-confirmation
[8] de Vogue, A. and Berman, D. (2017, April 07). Neil Gorsuched Confirmed to the Supreme Court. Retrieved from https://www.cnn.com/2017/04/07/politics/neil-gorsuch-senate-vote/index.html
[9] Livni, E. (2017, January 31). Trump’s US Supreme Court nominee Neil Gorsuch is a lot like Scalia, with one key difference. Retrieved from https://qz.com/899622/trumps-us-supreme-court-nominee-neil-gorsuch-is-a-lot-like-scalia-with-one-key-difference/
[10] Bradner, E., Biskupic, J. and Diamond, J. (2018, July 09). Trump picks Brett Kavanaugh for Supreme Court. Retrieved from https://www.cnn.com/2018/07/09/politics/trump-supreme-court-pick/index.html
[11] Haberkorn, J. (2018, October 06). Senate narrowly approves Brett Kavanaugh to Supreme Court, cementing conservative majority. Retrieved from https://www.latimes.com/politics/la-na-pol-kavanaugh-confirmed-20181006-story.html
[12] Ford, M. (2018, April 24). When the President Defies the Supreme Court. Retrieved from https://newrepublic.com/article/148108/president-defies-supreme-court
[13] Frazin, R. (2019, March 18). How many justices should be on the Supreme Court? It’s been a battle before. Retrieved from https://thehill.com/regulation/court-battles/434620-supreme-courts-size-was-once-subject-of-division
[14] FDR’s “Court-Packing” Plan. Retrieved from https://www.fjc.gov/history/timeline/fdrs-court-packing-plan
[15] Confidence in Institutions. (2019). Retrieved from https://news.gallup.com/poll/1597/confidence-institutions.aspx
[16] Feldman, A. (2019, July 08). Empirical SCOTUS: Changes are afoot - 5-4 decisions during October Term 2018. Retrieved from https://www.scotusblog.com/2019/07/empirical-scotus-changes-are-afoot-5-4-decisions-during-october-term-2018/
[17] Totenberg, N. (2019, July 24). Justice Ginsburg: ‘I Am Very Much Alive.’ Retrieved from https://www.npr.org/2019/07/24/744633713/justice-ginsburg-i-am-very-much-alive