Why we need an independent Supreme Court

The are many ways to tackle our political divisions. Packing the high court isn’t one of them

Keeping the number of justices at nine, through a constitutional amendment, would help preserve the independence of the Supreme Court and build more public trust, Long Thompson writes. (Caroline Brehman/CQ Roll Call file photo)
Keeping the number of justices at nine, through a constitutional amendment, would help preserve the independence of the Supreme Court and build more public trust, Long Thompson writes. (Caroline Brehman/CQ Roll Call file photo)
Posted September 2, 2020 at 2:09pm

The events of the last few months have shaken America’s trust in the institutions we rely on to keep us healthy and safe.

In this increasingly divisive political climate, I often think about how challenging it is to build and maintain trust in the institutions that are integral to preserving and protecting our democracy. Every day we see people in leadership and among our citizenry behaving in ways that erode our trust in Congress, the presidency, and the judiciary. But on the positive side, we also see people across the political spectrum working hard to restore trust and make our democratic government work better for the good of its people and the world.

When our Founding Fathers wrote the Constitution, they created a broad governing structure and process — with power balanced among three equal branches — that established the parameters for adopting and executing public policy. What they created is integral to building public trust.

Over the years, the public has often placed greater trust in the judiciary than in the legislative and executive branches of government. But in recent years, Gallup polls have found that only about half of Americans approve of the way the Supreme Court is handling its job. In an Annenberg survey from last fall, more than half the respondents said that while they trusted the court, they believed it was too political. And we all know that the process of appointing justices can be very politicized.

Toward the goal of depoliticizing and creating a more balanced Supreme Court, some argue we should create a system for packing the court. Most, if not all, of these proposals would increase the court’s size. (While the Constitution does not specify the size of the court, Congress set the number of justices at nine in 1869.)

But I believe any effort to pack the court would only undermine its independence, which is central to a fair judiciary, and make it even more political. It would also further polarize and divide our nation.

Now, more than ever, we need leaders who will unite rather than divide us. Democrats and Republicans should work together to persuade Congress to propose the “Keep Nine” amendment to the U.S. Constitution: “The Supreme Court of the United States shall be composed of nine justices.”

Having taught college-level statistics, including probability theory, I know that increasing the court’s size would, from time to time, create greater and longer-term imbalance in its makeup. The unintended consequence would be even greater politicization.

When applying probability theory to decision-making, we must always consider the cost incurred if an event takes place, as well as the likelihood of that event occurring. It is not difficult to imagine a rare, but realistic, scenario under which a president may need to fill a large number of vacancies due to unforeseen circumstances that cause a large number of justices to leave the court. It would be reasonable to expect this president to nominate individuals who are relatively young and who might be able to serve on the court for decades. If the Senate is controlled by the same political party as the president, the nominees would likely be confirmed.

This could result in a court that is skewed heavily to the right or left. With a larger court, there would have to be a larger number of vacancies before balance could be restored. And that could take decades to materialize. We can only imagine the damage that could be done during that time period.

Rather than packing the court, I believe a better way to reduce the divisiveness is to address the broader issues that have led to our current politicization.

  • We need to stop gerrymandering by creating genuinely independent bodies to draw congressional maps that reflect the will of the people
  • We need to strengthen disclosure requirements for super PACs and other entities involved in the political process
  • We need to stop voter suppression

The increased transparency and fairness that would result from these reforms would strengthen the people’s trust in government and their faith in the governing process.

Keeping the number of justices at nine, through a constitutional amendment, would help preserve the independence of the Supreme Court, and that would build even more trust.

Jill Long Thompson represented Indiana in the House as a Democrat from 1989 to 1995. She is currently a visiting scholar with the Ostrom Workshop at Indiana University Bloomington. The opinions expressed here are hers and do not purport to reflect the opinions or views of Indiana University.