Packing Our Way to Balance: A Necessary Correction for the Supreme Court

Authors

Robert E. Wagner

Document Type

Article

Abstract

The Supreme Court is in turmoil. It has the lowest recorded approval rating in its history. Multiple decisions over the past decade made by Justices nominated by a single political party, that the majority of the country viewed as political in nature, have tarnished the reputation of what was once a beacon of justice and impartiality. The Court is increasingly seen as a partisan institution with political actors rather than the fair and honest arbiter America needs it to be. In addition to dramatically unpopular decisions, the Court has suffered increasingly hostile and political machinations in its nominating process. This Article examines this problem and proposes an original solution. The Article begins the examination with a history of the Court and the initially controversial claim that it had the power to decide whether Acts of Congress were unconstitutional. The Article then examines the need for public support given the inherent inability of the Court to enforce any of its rulings. The Article continues by looking at how increased partisanship and uniparty decisions have weakened the legitimacy of the Court. The Article then reviews historic decisions that were met with scorn and hostility, but where bipartisan majority opinions actually accelerated popular acceptance of decisions, and reinforced faith in the Court itself. The Article then examines the benefits of a mean, or compromise, solution and the philosophical underpinnings for such, as supported by Aristotle and John Stuart Mill. Voluntary compromise, however, is almost unobtainable in our hyper-politicized world. To achieve balanced decisions and incentivize compromise, the Article argues that adoption of a Constitutional Amendment is necessary, requiring a Justice appointed by the opposite party to be a member of the majority opinion for any binding decision. The Article subsequently examines the near impossibility of Amendment adoption in the current political environment and proposes a solution: increasing the number of Justices as a means of forcing the adoption of the “Balanced Law Amendment.” The Article finally examines both the history of, and current potential for, packing the Court, and concludes that packing the Court is certainly Constitutional and could lead to the adoption of the necessary Amendment, making both the Court and our country stronger through balancing the decisions themselves rather than balancing the bench.