entrenching the judicial philosophy of the current Court majority for generations, while advantaging one political party.
Those who advance arguments for expansion along these lines emphasize that maintaining the status quo would amount to a failure to pursue available reforms with the potential to restore the Court’s role as ensuring the representativeness of government and the operation of democracy. On this view, any risks associated with expanding the Court at this time would not compare in severity to the failure to take action.
For some proponents of expansion, even the calls for such reform could help prevent further democratic backsliding. As some of the testimony before the Commission suggested, an attempted expansion—or even just the prospect of expansion—could lead the Supreme Court to be restrained in its jurisprudence and more respectful of the role of the political branches, at least in the short term.[98] Soon after President Roosevelt unveiled his Court-reform plan in 1937, the Supreme Court began to uphold New Deal programs. Although scholars continue to debate the reason for this “switch,” a few years after the failure of his plan, Roosevelt described it as “among the most important domestic achievements of [his] first two terms in office,” because it led to changes in the Court’s jurisprudence.[99]
3. Strengthening the Court
Some participants in the debate over Court reform also regard expansion as worth considering because of its potential to strengthen the Court as an institution.[100] An expanded Court might better incorporate diverse personal and professional perspectives. That diversity could come from the inclusion of Justices with experience in different sectors of the legal community or even the public sphere more generally. It also might include individuals of diverse religious, socioeconomic, racial, geographical, or other demographic backgrounds. Expanded diversity could enrich the Court’s decisionmaking, and a Court that was drawn from a broader cross-section of society would be well received by the public.[101] A larger Supreme Court might also be able to decide more cases and to spend more time on emergency applications—an element of the Court’s work that has attracted considerable attention as is discussed in Chapter 5 of this Report.[102] The Supreme Court’s rulings in merits cases have decreased considerably in recent decades. In the 1980s, the Court decided around 150 cases per year.[103] In recent years, that number has fallen to seventy or eighty cases.[104] To the extent the public or lawmakers would like the Court to resolve more cases, expanding the size of the Court might prompt the Justices to do so,[105] though other means to this end also could include expanding the Court’s mandatory appellate jurisdiction.
