September 27th, 2019
Reactions to RBG's passing reveal need for more justices
MON. | 9-28-20 | OPINION
The Notorious RBG, Supreme Court Justice Ruth Bader Ginsburg, passed away Sep. 18 in her battle with metastatic pancreatic cancer. As one of the nine Supreme Court justices, RBG was able to determine the constitutionality of laws and actions until her dying days. RBG’s death, and the subsequent vacancy in the Supreme Court of the United States (SCOTUS), has grabbed American’s attention as citizens and politicians alike as they remember her legacy and wonder about her replacement.
With a presidential election less than forty days away, there are two possibilities for how the replacement process will proceed: President Donald Trump and the Senate will rush to appoint a new
Graphic by Lexi Karaivanova
justice before November or they will wait till after the election to begin the process. In early 2016, when Justice Andrew Scalia passed away, the nation faced a similar issue. Back then Republican Senate majority leader Mitch McConnell refused to proceed with the nomination and confirmation process while Obama was still in office. McConnell’s exact words on the Senate floor were “Let's let the American people decide. The Senate will appropriately revisit the matter when it considers [who the] next president nominates.” In the present, McConnell is embracing Trump’s nominee — U.S. Court of Appeals Judge Amy Coney Barrett — doing exactly what he refused to do when Obama nominated U.S. Court of Appeals Judge Merick Garland in 2016.
While I could go on about the hypocrisy shown by McConnell, I am much more concerned with how the death of one justice has jeopardized so many people’s futures. When Barrett was announced as the nominee, her record on LGBTQ+ rights caught my eyes. The Human Rights Campaign mentions that, in relation to the landmark case Obergefell v. Hodges that legalized same-sex marriage across the nation, Barrett agreed with the justices that did not think same-sex marriage was Constitutionally supported. Obergefell v. Hodges was ultimately decided by a 5-4 majority that believed states banning same-sex marriage were violating the 14th Amendment’s Due Process and Equal Protection clauses. Had Obergefell not won the case by one justice, same-sex couples in many states would still not be able to marry one another. If Obergefell v. Hodges was being heard today, with Barrett on the bench instead of Ginsburg, I would probably not be able to get married in the state of North Carolina — all because of a single justice. The fate of the nation should not be hinged on one justice, or even a total of nine justices. The SCOTUS needs more than nine justices.
The Supreme Court was created by the Constitution, but the Constitution did not dictate how many justices there should be. Thus, as noted by the White House, in the first eighty years of the SCOTUS the number of justices changed as different Judiciary Acts were passed. The United States has had nine justices since the Judiciary Act of 1869, but that does not mean we are bound to that. Adding more justices would not be too difficult to do, compared to other proposed SCOTUS reforms such as term limits; Congress simply needs to pass legislation. Rutgers law professor Jacob Russell notes that many circuit courts have anywhere from six to twenty-nine justices, thus it is not an outlandish idea to have over nine justices for a diversity of opinion and higher numerical threshold of a majority opinion.
Besides feasibility, more justices would lessen the chance that influential decisions rest upon one person. Some pivotal Supreme Court cases have been decided by a 5-4 majority — Citizens United v. FEC that decided corporations can have unlimited election spending as a form of free speech and Obergefell v. Hodges that legalized same-sex marriage — which means that those cases could have easily been decided the other way. Russell made the comparison that it would be undemocratic to have a nine person Congress, yet it is somehow appropriate to have a nine person SCOTUS. The SCOTUS arguably holds the greatest power in how the Constitution applies to citizens and non-citizens, as its precedents live on for generations; do we really trust just nine people making such decisions, especially when voters are not directly involved in the nomination process?
Unfortunately the process of adding more justices, typically referred to as court packing, does have its own issues — the main one being that it will be done in a partisan way to regain a liberal or conservative majority. During the 2020 Democratic primary election season, candidates such as Elizabeth Warren and Pete Buttigieg were open to court packing as a means to balance voices out, while current Presidential contender Joe Biden argued in the October Democratic Debates that it would lead to a cycle of Democrats and Republicans adding justices each election to regain control.
With the conversation of court packing on the table in 2019, NPR asked RBG what she thought of such plans; she declared that she opposed the idea of court packing and thinks it will take away from the integrity of the courts as independent institutions. She referenced President Franklin D. Roosevelt’s court-packing plan, in which he would have added six justices to the court to gain judicial support for his New Deal. While her concerns are valid, I would argue that there has to be a way to add more justices without it being partisanly done by only the sitting president. During the October Democratic Debates, Buttigieg introduced the idea of having fifteen justices, with five of them chosen unanimously by the other ten justices; this proposal would lessen the partisanship of all new justices being chosen by the President. The broader impact of having more justices should far exceed the immediate partisan concern.
While RBG argued against the partisanship of SCOTUS expansion, her death has only shown that having so few justices is problematic and inherently partisan. A week after her death, we have already seen deep partisan arguments over how to handle her replacement, with the nation questioning the future of the SCOTUS. The balance of the court all depends on whether Trump remains as president or not — whether a Republican or Democrat will induct a new justice. In a nine justice SCOTUS, each justice holds immense power and ability to make or break a decision, meaning both Trump and Biden will want to endorse a justice that shifts the balance in their favor. In contrast, a fifteen justice Supreme Court would not be as fragile under the removal or death of one justice since they each have less individual power.
As we watch the aftermath of RBG’s death on the SCOTUS unfold, consider how it would have been different if there were more justices. Would the power of the SCOTUS rest upon a single justice?