Supreme Court Expansion and Political Maneuvering: A Potential Path Forward

Americans focus less on the number of Supreme Court justices and more on the court’s perceived fairness. Currently, trust in the court is diminishing, driven by concerns it may become a partisan tool rather than a neutral arbiter. This apprehension stems from legislative attempts by Democrats to expand the court from nine to as many as 15 justices, sparked by a conservative majority viewed as unfairly established. Republicans, observing these efforts, contemplate preemptive measures.

The filibuster’s erosion, historically used for judicial appointments by both parties, threatens to disappear. Each party’s maneuvers validate the other’s fears, leading to a potential future where the court becomes crowded with 17, 20, or even 30 justices, compromising its independence in favor of political power.

The Judiciary Act, introduced by progressive Democrats in recent years, suggests expanding the court and granting the sitting president immediate power to appoint new justices. Under a Republican administration and Senate, this act could backfire on its Democratic authors, inadvertently solidifying a conservative supermajority.

This contradiction could serve as leverage for a bipartisan agreement. One proposed deal involves Republicans preparing two legislative options: a straightforward version of the Democrats’ expansion proposal and a constitutional amendment to cap the court at 11 justices, with two new seats appointed by the next two presidents of any party.

This offer aims to preserve institutional stability, not maintain the current conservative tilt. The proposition to Democrats is clear: support the amendment or witness the expansion bill passed to Republican advantage. This genuine offer intends to stabilize the court permanently, removing its size from political manipulation.

The difficulty of passing a constitutional amendment adds to its durability, offering a long-term solution beyond the reach of temporary majorities. The political climate, where both parties express commitment to safeguarding the court’s legitimacy, presents a rare opportunity for action.

Polls indicate Americans desire structural consistency in the court, despite disagreements on its decisions. In advising organizations, it’s observed that once an institution’s rules become negotiable, it invites ongoing negotiations, risking losing restraint.

The Supreme Court, maintaining a stable bench for 150 years, has weathered controversial decisions and subsequent reversals. It risks becoming a partisan battleground, undermining its foundational role. Institutions have historically guided the nation through challenges, and an independent Supreme Court remains essential to our governance system.

Despite most Washington leaders valuing the court as a pillar of checks and balances, there are doubts about their political bravery. A practical deal can harness their survival instincts to navigate today’s challenges.

Marc Hodak is a corporate governance expert advising global organizations and teaching at NYU Stern and SMU.