Despite controlling neither the sword nor the purse, the Supreme Court has been able to wield considerable power by in effect legislating rather than simply judging. To lessen and perhaps gradually eliminate battles like “Roe v. Wade,” why not reduce the number of Supreme Court justices to five?

During the 2020 campaign, which saw the appointment of a new associate justice, there was much talk of a possible move by possibly victorious Democrats. Their reaction might be to “pack” the Supreme Court by adding as many as six new justices. To date, there has been no actual move to do this by actually victorious Democrats. But if there is such a move in this direction, here is a counter move to consider.

First, let’s remember that altering the number of justices would not require a constitutional amendment. The Constitution requires a Supreme Court, but it is silent on the precise number of Supreme Court justices. When the country began in 1789 there were six justices. In 1801 a freshly inaugurated President Thomas Jefferson tried, but failed, to reduce that number to five. Near the end of his administration a seventh justice was added in 1807. Thirty years later the eighth and ninth joined the court.

And nine it has been for nearly two centuries now. Still, nine are not required by constitutional mandate. To this point, the only serious attempt to alter that number was a freshly re-elected President Franklin Roosevelt’s failed 1937 effort to add as many as six new justices to replace any justice who did not retire after reaching the age of seventy.

FDR’s “court packing” scheme stemmed from his frustration over the fact that the “nine old men” (his term) had invalidated key pieces of his New Deal. But the plan died a bipartisan death in Congress.

Democratic opposition to the nomination and confirmation of Justice Amy Coney Barrett to replace the departed Justice Ruth Bader Ginsburg in the midst of a presidential campaign triggered Democratic calls to resurrect some version of the Roosevelt plan to add six new justices.

For some reason fifteen does seem to be the magic number. In any case, it’s a number that could be obtained by a simple majority in each house of Congress. But perhaps it would make more sense to move that current number of nine justices in the opposite direction.

After all, if there is nothing necessarily magic about fifteen, there should be nothing necessarily magic about nine or fewer than nine. An odd number surely makes sense. But the odd number of five, or perhaps no more than seven, while not necessarily magic, might make even more sense. In any case, it makes more sense to reduce the size of the Supreme Court than to increase it.

Why? Because Alexander Hamilton has proved to be wrong. In Federalist Number 78 Hamilton made the now mistaken case that the Supreme Court would be the “least dangerous branch” of the federal government.

Why? Because Hamilton understood that the Supreme Court would possess neither the “sword” of the executive nor the “purse” of the legislature. Without the ability to deploy force or levy taxes, the Court would be reduced to simply exercising judgment; hence Hamilton’s own judgment that the Court would inevitably be the “least dangerous” branch.

Well, as things have developed Hamilton has turned out to be a mistaken prognosticator. Despite controlling neither the sword nor the purse, the Court has nonetheless been quite able to wield considerable—dare it be said dangerous—power by in effect legislating rather than simply judging. Roe v. Wade is the most egregious example, but it is far from the only one.

How else to account for the Supreme Court confirmation battles of recent decades? How else to explain the addition of the verb form “to bork” to our always growing vocabulary?

One way to lessen and perhaps gradually eliminate these battles would be to “unpack” rather than “pack” the Supreme Court. Furthermore, reducing the number of confirmation battles in the near future might well reduce, if not eliminate, such battles in the longer term.

Why not have a Supreme Court of five—or at least no more than seven—justices? How would we get there? Return to a version of what Jefferson attempted to do long ago. When the next two—or perhaps four—vacancies occur, there should be no appointment. Or set, say, eighty as the retirement age, and then gradually get to five or seven.

Once gradually reduced in size, the Court might gradually reduce itself in scope and reach. Over time the Supreme Court might well become what Alexander Hamilton presumed that it would always be, namely the “least dangerous” branch.

How so? The larger the number of justices, the greater the temptation of the Court to think and function as a kind of legislature. Instead of exercising judgment, it will inevitably become preoccupied with balancing interests, splitting differences, concocting compromises, and in effect legislating.

And really now, once the Court reaches fifteen, why stop there? If one party could summarily add six justices when it obtains power, why wouldn’t the other party match that number when it returns to majority status?

Hamilton’s idea was that the Supreme Court would exercise judgment, not power. With fifteen or more justices the temptation for all of them to think and act like legislators would be dramatically increased.

More than that, the temptation to reserve seats for various identity groups would be seriously reduced, if not eliminated. With fewer seats available to be distributed, it will become impossible—and then unthinkable—to satisfy all potential groups.

But most important, a Supreme Court of smaller size would likely be much more inclined to play the role that Alexander Hamilton had intended that it should play, namely exercising judgment, rather than legislating from the bench.

And what could be more important than that? The “least dangerous” branch would not necessarily have to be the least important branch. After all, nothing could be more important than having a smaller Supreme Court return to its role as guarantor of the actual Constitution rather than adopt a legislative role as the permanently ongoing creator—or at least enabler—of something called the living constitution.

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