“If Trump replaces Thomas and Alito with younger clones, can the next president add justices to balance the court?” — Don
Hi Don,
Adding (or subtracting) Supreme Court seats can be done through legislation. That means a president can’t expand the court on their own, but they can do so with a like-minded Congress. A constitutional amendment isn’t needed.
The court’s size changed several times earlier in the country’s history, going up to 10 justices before settling at nine in 1869.
There’s no legal reason that it needs to stay that way. As was the case for the court’s prior changes, whether it shifts further will be a political decision by the nation’s elected officials.
We saw a more localized version of this phenomenon play out this year in Utah, where the state’s Republican governor signed a bill adding two justices to the state’s high court, after a five-member court had ruled against GOP interests in a string of cases.
Turning back to Washington, although the court’s size has formally stayed at nine for a long time, recent history sheds light on how to think about “balancing” the court.
When Justice Antonin Scalia died in February 2016, Senate Republicans, then led by Kentucky’s Mitch McConnell, declined to hold a confirmation hearing for then-President Barack Obama’s nominee, Merrick Garland, on the stated grounds that it was too close to that year’s presidential election. As that election drew nearer, with Democrat Hillary Clinton facing off against Republican Donald Trump, Republican Sen. Ted Cruz of Texas suggested that his colleagues could hold the seat open indefinitely if Clinton won. After Trump won, the GOP-led Senate confirmed Neil Gorsuch to the seat.
Then, toward the end of Trump’s first term, when Bill Clinton-appointee Ruth Bader Ginsburg died in September 2020, Republicans pushed through Amy Coney Barrett’s confirmation the following month, despite Ginsburg’s death being much closer to that year’s November election (which Trump lost to Joe Biden) than Scalia’s death was to the 2016 election. McConnell sought to justify Barrett’s 2020 confirmation on the grounds that, unlike in 2016, the White House and the Senate were controlled by the same party.
Like any words from a politician or anyone else, people are free to judge them as they see fit or ignore them completely and focus on actions. Given the shady paths that placed Gorsuch and Barrett on the court, if Democrats gain presidential and congressional control, they could make a case for balancing out those seats that’s at least as strong as the case for doing so if Trump appoints replacements for the court’s two oldest justices, Clarence Thomas and Samuel Alito.
Of course, there’s also Trump’s other appointee to date, Brett Kavanaugh. He may have had the most contentious confirmation, even if his ascension came about in the most relatively normal way, in that a Republican-appointed justice (Anthony Kennedy) stepped down at a time that a Republican president could name his replacement. That more typical modern succession is seemingly what would occur if Thomas or Alito were to step down.
Whatever arguments one wants to make about the court’s future size, the legal answer is that it’s up to political actors, who can expand or shrink the court for any reason or no reason at all, so long as they have the votes.
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