Last Guest Post of this series: Reform the Supreme Court

I return to regular posting on Monday.

(We get by with a little help from our friends.)

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A Quinnipiac poll found that just 33 percent of voters approve of how the Supreme Court is handling its job.

Gallup is publishing charts showing it:

College classmate Erich Almasy is writing about it. 

While I am at the 55th reunion of my college class of 1971, I am sharing guest posts by classmates. I want time to visit the stacks of Widener Library, go to the south side of the fourth floor, where I will return to a place where I am surrounded by books shelved under the subject U.S. History. I expect to find my favorite wooden cubicle, the one with a window looking down on the Wigglesworth dorm. Four years ago, it was there. You can't go home again. Home changed: people got old, parents died, old girlfriends moved away and married. But that study cubicle in the Widener stacks has been unchanged for 60 years so far. 

After graduation Erich Almasy went to Harvard Business School, then had a long career on the consultancy/business management track. He and his classmate wife, Cynthia Blanton, live in Mexico.

College Graduation photo

Erich Almasy and wife Cynthia Blanton

Guest Post by Erich Almasy

How did we get to this place of politicized justice, not for all but for a minority of White people? The original Judiciary Act of 1789, which accompanied the Constitution, called for six Justices. A majority of Congress, composed of the opposing party, tried to limit President Thomas Jefferson’s ability to fill an empty seat and reduced the number to five in 1801. After the year 1807, when his party regained the majority, Jefferson shepherded an increase to seven to accommodate new Western circuits. Then, in 1837, under President Martin Van Buren, the additional circuits in the south and west led Congress to expand the court to nine. Congress added one court member in 1863 so that President Abraham Lincoln could have an anti-slavery majority and bypass the racist chief justice, Roger Taney, who was responsible for the Dred Scott decision in 1857. Congress bounced the court to seven in 1866 and back to nine justices in 1869, where it has remained.

 

The most famous (infamous) effort to change the court’s numbers occurred during FDR’s presidency. Seeing some of his New Deal legislation thwarted by a conservative majority, Roosevelt proposed increasing the number of justices to fifteen. The court caved on Roosevelt’s demands, and its size remained the same. And while this was known as “packing,” it actually represented a throwback to the original court concept, where justices rode circuits (until 1891) and the court increased its number as the country grew and needed more circuits. The number of district courts has remained static at 94 for several decades, with the March 2025 Judicial Conference of the United States recommending the creation of 69 new district courts to address the overloaded system. The number of circuits has remained constant at 13 since 1982. The same conference recommended two new circuits because the present annual workload exceeds 3,300 decisions.

 

The number of Supreme Court justices has always been fluid, expanding with the country’s growth. The determination of its size has also been quite political, changing for partisan reasons on four occasions. A court of fifteen would be able to deal with the present severe overload (exacerbated by a certain administration’s demands for emergency relief) and would spread out the ages and political leanings of justices with appointments spread over several administrations. A larger court would also help reduce the disturbingly large number of shadow docket decisions, where no written opinion exists and “irreparable harm” allows the court to take immediate action. Sounding suspiciously like the 15th-century English Court of the Star Chamber, which secretly punished people the King didn’t like, shadow dockets take action without judging the merits of a case. They are essentially unsigned short orders that the court traditionally used only to delay a death penalty execution. Now they are non-transparent decisions with no accountability. During Biden’s four years, there were 19 shadow docket cases. So far, the Trump administration has filed 34 in sixteen months. One of the most recent decisions allowed Trump to implement his Executive Order, forcing all “trans” people out of the military. The irreparable harm done here was clearly to the people fired, and the emergency, like so many of Trump’s, was fictional.

 

Toward the end of the Biden term, a report on proposed reforms to the Supreme Court, which took three years to produce, was issued. No one has looked at it since. It suggested term limits of 18 years, a measure that 67% of Americans support. It established a binding code of conduct, ethics, and conflict-of-interest policies for Justices. It suggested increasing the number of Justices to speed case evaluation and resolution. If Americans have any hope of seeing realistic campaign finance laws, reversal of presidential immunity, a right to abortion, gun registration, restraints on the Christian religion in schools, and the reinstatement of the Voting Rights Act, then major Supreme Court reform is a “must have.” The judiciary of the United States is in a perilous state. Courts are jammed, and a speedy trial is a fantasy. Unaccountable decisions that cannot be understood as precedent by lower courts are becoming widespread. The most political court in nearly 170 years is running roughshod over American law and precedent. It’s time for a massive change.

 

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