A Proposal to Restore Trust and Stability in the Supreme Court

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The American public is not overly concerned with the exact number of Supreme Court justices. What truly matters to them is the court’s fairness. Currently, trust in the Supreme Court is rapidly declining. This distrust doesn’t stem from a specific ruling but from growing concerns that the institution is becoming a spoil of political ambition rather than a trusted arbitrator.

This anxiety is not baseless. There have been numerous efforts by Democrats to propose legislation aimed at increasing the number of justices from nine to 13 or even 15. This push is fueled by their frustration with a conservative majority that they view as illegitimately established. On the Republican side, these legislative moves, along with threats from Democrats to abolish the filibuster to pass them, have made them consider taking preemptive actions. Notably, both parties have previously weakened the filibuster to influence judicial appointments, and its remaining influence may not last.

Each political side’s threats provide the other with justification for escalation, following a certain logic. This logic’s endpoint could lead to an overbloated Supreme Court with 17, 20, or even 30 justices, staffed largely based on recent election outcomes, effectively shattering its independence.

Republicans do not need to draft new court-packing legislation because Democrats have already introduced such a bill. The Judiciary Act, initially proposed by progressive Democrats in 2021 and again in subsequent years, seeks to expand the court and allow the current president to fill these additional positions immediately. If this bill passed today, under a Republican president and Senate, it would inadvertently establish an even more lasting conservative supermajority, counter to the bill’s original intent. Not even the Democrats who sponsored this bill would support it under such conditions.

This legislative contradiction presents an opportunity for negotiation. The proposal is simple: Republicans should present two bills, with the assurance that one will proceed. The first is a straightforward version of the Democrats’ expansion proposal, set for a vote. The second is a constitutional amendment to permanently set the number of justices at 11. The additional seats would be filled by the next two presidents, irrespective of their party affiliation.

The importance of this approach is its aim for institutional stability over political dominance. It communicates to Democrats that they have a choice—support the amendment for stability or see their expansion bill passed to Republicans’ advantage. This proposal isn’t intended to humiliate but offers a genuine resolution. A constitutional amendment fixing the court at 11 justices does not inherently benefit any party long term but removes the court’s size from political maneuvering.

An argument may arise that passing a constitutional amendment is overly challenging. However, this difficulty is precisely what ensures its durability as a solution, beyond a statute that any successive Congress could overturn once political power shifts.

The current bipartisan emphasis on preserving the court’s legitimacy might offer a unique opportunity to accomplish this. Americans consistently express a desire for a structurally stable court, despite divisive opinions on its rulings.

With extensive experience in advising institutions on governance, I have observed similar dynamics unfold in various organizational settings. When institutional rules seem negotiable, the negotiations ensue. The restraint that initially prevents action becomes a casualty, irreparable in the aftermath of the first provocative move.

This situation reflects where the Supreme Court is heading. For 150 years, the court has operated with a stable number of justices and has weathered numerous contentious decisions that divided the public. While many of these decisions were later modified or overturned by future courts or broader societal changes, the court’s integrity faced a significant threat. Both political parties are now poised to transform it into a tool for temporary partisan gains, destabilizing a crucial element of governance.

Throughout history, American institutions have guided the nation through turbulent times. The independence and stability of the Supreme Court are vital to maintaining this continuity, regardless of its current makeup or which party benefits from its judgments today.

While political leaders in Washington generally express their commitment to the court’s role as a checks-and-balances mechanism, there is room to question their political courage. With a well-crafted agreement, reliance on leaders’ survival instincts might succeed in navigating current challenges.

Marc Hodak is an expert in corporate governance. He advises global businesses on governance and institutional incentives and has guided courses in corporate governance at NYU Stern and SMU.