The US Supreme Court didn’t always have nine members. The original Supreme Court established by the Constitution in 1789 had six. However, the number of Supreme Court justices is not set by the Constitution. Congress sets the number, and Congress has flip-flopped. The six members were reduced to 5 in 1801. And in fact, the number of justices on the Supreme Court changed six times before settling on the present nine in 1869. In other words, the number has never been set in stone. Just possibly, to enable a broader spectrum of opinion on the Supreme Court, we could have 13, 15 or more members.
Is that unthinkable?
No. Franklin D. Roosevelt proposed increasing the number to 15 in 1937 though the idea wasn’t well-received. Roosevelt was accused of trying to pack the court, attempting to load the court with justices who would support his New Deal policies. The Senate voted down his 15-member Supreme Court idea 70 to 20. But just last year, the Democratic presidential candidate Pete Buttigieg again raised the possibility of a 15-justice Supreme Court. In Buttigieg’s plan, five justices would be Democratic, five Republican, and five apolitical. More recently, as a response to the possibility that Thump might be able to load his own Supreme Court following the death of Ruth Bader Ginsberg, Massachusetts Senator Ed Markey got himself into trouble with the Biden campaign by pushing that his party “must expand the Supreme Court” if power shifts to the Democrats. Markey is not alone. On September 20th, former Attorney General Eric Holder tweeted, “If the court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.”
And if 15 Supreme Court members somehow seems to be pushing the envelope, how about 79? Spain’s Supreme Court, the Tribunal Supremo, was established in 1812 and started out with 16 members. Over time, that number first increased to 25, and then to 33. 33 became 40, until finally 40 became the 79 magistrates that make up the Spanish Supreme Court today.
Lifetime tenure is not taken literally in most parts of the world. Ireland, Belgium, Canada, Peru, Australia and South Africa are among the countries that require justices appointed for life to retire at 70. Longevity, one of the factors that makes the US selection process so fraught, is removed from the picture. Finland sets the retirement age for its Supreme Court judges at 65, as do Ukraine and Barbados.
And there are various options for the Supreme Court selection process too. In Germany, judges of the Federal Court of Justice, the highest court, are selected by an electoral committee convened by the Federal Minister of Justice. There are 32 members, the Secretaries of Justice of the 16 German Federal States and 16 representatives appointed by the German Federal Parliament. Voting is secret. Once a judge has been chosen by this committee, he or she is appointed by the President. But his or her confirmation requires a two-thirds majority vote in the German Parliament; this gives the opposition pretty much veto power over any candidate, but also ensures complicity in the election of judges.
Other countries take other Supreme Court selection approaches. In Chile, lists of candidates are provided by the court itself. In Costa Rica, Supreme Court justices are elected by the National Assembly for a period of 8 years, renewable again only by National Assembly vote. In Denmark, the Monarch appoints judges based on the recommendation of the Minister of Justice and the advice of a Judicial Appointments Council, an independent six-member body of judges and lawyers. In Qatar, magistrates are appointed for three-year renewable periods. Uruguay appoints its justices for 10 years, with a new term possible after a lapse of five years.
The current US model is not by any means the only Supreme Court blueprint available or followed in much of the rest of the world. In fact, we may have valuable lessons to learn by studying and evaluating how the rest of the world goes about recommending Supreme Court justices, choosing the number of possible justices and deciding on how long those justices stay on the court.