Why This Constitutional Law Scholar Doesn't Think We Should Expand The Supreme Court
'Beware my friends, you can make the system worse rather than better,' he warned.
(Photo by Erin Schaff-Pool/Getty Images)
The fundamental problem is not a constitutional problem. The number nine doesn’t appear in the document. We haven’t always had nine justices. And the size of the Court has changed over the years for various reasons. So, we could do it. But it would be a bad idea because when you change the size of the Court for purely partisan advantage, then what goes around comes around, and when the other side comes in, they’re going to try to add. You add 6, they add 12, then you add 18, and the thing spirals out of control. And that’s just an obvious argument. I’m sure it’s occurred to all of you. …
[Y]ou could make it worse by doing this. I think you will; I think it will spiral out of control, and the one branch of government that is the least dysfunctional right now, less dysfunction than the presidency, less dysfunctional than the House and the Senate, is the judiciary, the Supreme Court. So, don’t mess it up, because you could break it, and will break it if we spiral out of control, as I fear we would with this proposal….
— Professor Akhil Reed Amar of Yale Law School, a constitutional law scholar who has been cited by the Supreme Court in more than 40 cases and is considered “the architect of the nuclear option,” in his opening statement against a motion to expand the Supreme Court, during a debate organized by Intelligence Squared U.S., in partnership with The Newt and Jo Minow Debate Series at Northwestern Pritzker School of Law. Amar and Sidley Austin’s Carter Phillips, a veteran Supreme Court and appellate advocate, argue against the motion, while Slate’s Dahlia Lithwick, a prominent progressive legal commentator, and Tamara Brummer, senior advisor and director for Demand Justice, one of the leading organizations advocating for court expansion and reform, argue for it. Check out the debate, below, and go to iq2vote.org to cast your pre-debate and post-debate votes for or against expansion of the Supreme Court.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
