Free Speech For People supports the Judiciary Act of 2021, which would increase the number of justices on the U.S. Supreme Court from nine to thirteen by creating four new associate justice positions.

The Constitution does not specify the number of justices who sit on the Supreme Court at a given time. Rather, Article III of the Constitution vests Congress with broad power to establish the courts, which includes the authority to set and to alter the size of the Supreme Court. Congress has modified the number of justices on the Supreme Court seven times in our history, most often to reflect a change in the number of circuits of the U.S. Courts of Appeals. Congress most recently changed the size of the Supreme Court with the Judiciary Act of 1869, which set the number of justices at nine, in alignment with the number of circuit courts in the United States at that time.

But since then, the number of justices on the Supreme Court has not kept pace with the number of circuit courts in the United States, as the number of justices has remained at nine even as the number of circuit courts has risen to thirteen.

In parallel with the increase in the number of circuit courts, civil and criminal case filings have also continued to grow. Many cases in our increasingly technologically and legally complex society require extensive analysis, research, and writing, but the Court has been unable to keep up. The number of cases accepted for review by the Supreme Court has steadily declined from approximately 1980, when the Supreme Court routinely heard 150 cases per term, to just 69 in the October 2018 term, the last full term before the COVID-19 pandemic. When the Supreme Court declines to review a case, important national legal issues may be left unresolved, citizens, businesses, and governments may be left uncertain of the law, and incarcerated people may be executed simply because of a lack of a justice who has time to carefully consider a meritorious petition for a stay. Adding more associate justices to track the increase in courts and filings would allow the Supreme Court to accept more cases for review and fulfill its mission of providing equal justice under law.

This reform is needed now more than ever. Public trust in the Supreme Court has been gravely harmed by more than two decades of legally unsound decisions, including Bush v. Gore, 531 U.S. 98 (2000), Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and Shelby County v. Holder, 570 U.S. 529 (2013), that have undermined representative democracy, the fundamental constitutional right to vote, and political equality. Even worse, public confidence in the impartiality of the Supreme Court has been undermined by the nominations of the last several associate justices, which were marked by the erosion of the historical norms that ensure a fair and representative judiciary:

• On March 16, 2016, President Obama nominated Judge Merrick Garland for the seat left vacant by the death of the late Justice Antonin Scalia. Ostensibly because a presidential election was upcoming in eight months, the Senate refused to consider Garland’s nomination. The Senate did not hold any hearings or votes for the entire 293 days remaining in the 114th Congress, more than doubling the longest previous record for a confirmation delay, of Justice Louis Brandeis, who was ultimately confirmed in 1916. The Senate Majority Leader later publicly boasted that his refusal to allow the President of the United States to fill the vacant Supreme Court seat was one of his “proudest moments.” After Judge Garland’s nomination expired, the Senate rapidly confirmed a replacement nominated by President Trump.
• On July 19, 2018, President Trump nominated Judge Brett Kavanaugh to succeed the retiring Justice Anthony Kennedy. During the confirmation hearings, it emerged that multiple women had asserted credible accusations that Judge Kavanaugh had sexually assaulted them. Furthermore, in his 2004 and 2006 confirmation hearings to the position of Circuit Judge, he had lied under oath about his receipt of stolen confidential materials. Judge Kavanaugh’s reaction to these charges was intemperate, partisan, and not consistent with sound judicial temperament. Despite these credible allegations, the Senate Judiciary Committee rushed his confirmation proceeding. Judge Kavanaugh’s conduct was so concerning that 83 ethics complaints were filed regarding his conduct during his Supreme Court confirmation hearings. The panel of judges assigned by Chief Justice Roberts to investigate these complaints described them as “serious” but decided that lower court judges have no authority to investigate Supreme Court justices. (Free Speech For People has called for an impeachment investigation of Justice Kavanaugh.)
• On September 29, 2020, President Trump nominated Judge Amy Coney Barrett for the seat left vacant by the death of the late Justice Ruth Bader Ginsburg. The 35 days between her nomination and the election was by far the shortest such period in U.S. history. But notwithstanding the purported principle against confirming a new Supreme Court justice with eight months or less before a presidential election, the Senate proceeded to confirm her on October 26, 2020, just eight days before Election Day and while early voting had been ongoing for months in many states.

In sum, the number of justices has not kept pace with the number of circuit courts; in our increasingly legally complex society, the justices are unable to keep up; the Court has lost substantial public legitimacy by rendering decisions that fundamentally weaken our democracy; and the historic norms of appointment and confirmation have been breached three times in the last five years for partisan benefit. Taken together, these factors lead us to support efforts to increase the number of justices on the Supreme Court from nine to thirteen, to reflect the growth of the judiciary over the last 150 years, to restore legitimacy and balance to the Court, to protect our democracy, and to secure the rights of the American people.