These arguments are not particularly compelling, and where they carry some weight, they can be addressed without altering the Court’s ideological balance.
In a recent Lawfare piece I argued against expanding the Court and explained why the Court’s ruling in Louisiana v. Callais does not warrant such a move. Court-packing is typically understood as an effort to shift the Court’s ideological composition by increasing its size. As a result, many current Democratic proposals would tilt the Court from a 6-3 conservative edge to a 7-6 liberal one by adding four seats.
Yet there are several non-packing justifications that people offer for enlarging the Court. I occasionally hear them raised in reply to my critiques of court-packing. In this post I examine the most frequently cited ones. Overall, I find them to be fairly weak. But where they have some merit, they could be addressed without expanding the Court by adopting approaches that keep the larger body’s ideological balance roughly in line with the existing one. That way, the dangerous slippery-slope effects that court-packing can trigger—potentially eroding judicial review—would be avoided. If your aim is a bigger Court while resisting compromises, that strongly signals that your priority is court-packing over these other concerns.
If your principal motive for enlarging the Court is to shift its ideological tilt, the arguments presented here are unlikely to move you (you may prefer my critiques of court-packing instead!). But if you care about these other considerations, continue reading.
The most commonly voiced non-packing justification for expanding the Court is the claim that we should have thirteen justices now that there are thirteen appellate circuits. The logic is that there ought to be one Supreme Court justice per circuit, a standard long followed during much of the 1800s. For example, Pete Buttigieg, who has been floated as a 2028 Democratic presidential candidate, recently observed that “Nowhere in the Constitution does it say that there have to be nine Supreme Court justices… It just takes a readiness to set up a court that fits this country. We could have 13 seats matching the district structure of the federal judiciary.”
The flaw in this argument, as Josh Braver shows in a significant article, is that the nineteenth‑century expansion to match circuits arose largely from the practice of “circuit riding,” whereby Supreme Court justices regularly served as circuit judges on their assigned lower courts. Circuit riding was arduous and time-consuming, and one justice could not easily oversee two circuits at once (especially given the slower travel of the era). But mandatory circuit riding was abolished by Congress in 1891. Today, the supervisory duties of justices over their circuits are quite limited. Consequently, it isn’t a heavy burden for some justices to supervise two or more circuits rather than just one.
At present, two justices—Alito and Kavanaugh—each supervise two circuits, while Chief Justice Roberts oversees three. I doubt this constitutes an excessive burden or that it gives them outsized power relative to the remaining six. But if you disagree, there is a straightforward remedy that avoids court-packing: raise the number to 13 (one per circuit) yet allow the party not occupying the White House to pick two of the new seats. This approach would ensure both the conservative and liberal blocs gain the same number of justices, thereby avoiding packing and the associated slippery slope.
Implementing this would require some political maneuvering; the president and his party would need to credibly commit to nominating and confirming two justices chosen by the out‑party. Yet such deal-making is commonplace. One possible path is for the president and the opposition to preselect four names and embed a clause in the expansion law ensuring it only takes effect if all four are nominated and confirmed within a specified window (for example, within one year of enactment).
A second plausible non-packing justification for expansion is the belief that more justices would allow the Court to hear more cases. Justice Brett Kavanaugh and others outside the Court have argued that the Court takes far too few cases and should hear more. They may be right. I don’t claim to have a definitive view on the ideal total number of Supreme Court cases, although there are certain areas—such as constitutional property rights—where I would like to see more activity.
But even if the Court should hear more cases, it does not automatically follow that more justices are required. The Court currently hears roughly fifty to sixty cases on its regular docket each year, including 56 last year (not counting “shadow docket” matters that lack full briefing and oral argument). In the early 1980s it handled about 160 cases per year, and there were nine justices back then as well. Increasing the docket today would be facilitated by modern technology—advanced electronic databases and now artificial intelligence—that enable rapid research and analysis of the relevant legal issues.
The reason the Court hears relatively few cases is not primarily a matter of the number of justices, but the fact that the justices control their own docket and, with few exceptions, prefer not to take on more. There is no guarantee this would change simply by expanding the Court. New justices might still favor a lighter caseload, enjoying more free time and longer summer breaks. Who wouldn’t want that?
If Congress aimed to secure more cases, it could more effectively accomplish this by expanding the Court’s mandatory jurisdiction. Before the Judges Act of 1925, the Court had a substantial compulsory docket and therefore heard more cases. Congress could repeal or revise that law to raise the justices’ workload.
There is a certain irony here. If, like many progressive critics, you think the Court does a poor job on the most consequential cases, you might actually prefer that it decide fewer issues, thereby leaving more matters to the lower federal courts (which, on average, are somewhat more liberal than the current Supreme Court majority).
Even if you want the Court to hear more cases and believe increasing the number of justices is the best route, you can achieve this without altering the Court’s ideological balance. Adopt the ideologically balanced expansion described above. If you feel that 13 seats are not enough, you can apply the same approach to reach 15 or more (with 15, the president’s party and the opposition would each appoint three new justices).
Finally, some argue that a larger Court would yield higher‑quality deliberations and perhaps a broader range of experience among the justices. I’m not convinced this is necessarily true. For instance, larger state supreme courts do not consistently perform better than smaller ones, and the same pattern appears with en banc circuits where more judges sit. Today, circuit sizes range from six judges in the First Circuit to twenty-nine in the Ninth; there is little to no evident link between size and quality here.
On the other hand, I’m not convinced nine is the optimal number either; eleven, thirteen, or fifteen could be preferable. Again, this could be achieved without altering the ideological balance by using the procedure described above.
As noted in my Lawfare piece and other writings, I am far from a blind admirer of the Court’s current majority, and I believe they get several important questions wrong. I oppose court-packing because it would worsen the situation, not because the status quo is ideal. I also support a range of reforms that don’t require changing the number of justices, most notably term limits.
I am not endorsing the status quo here. This article merely argues that expanding the Court isn’t necessary to achieve various other improvements in its work. And to the extent that expansion would be desirable, it should be done in a way that does not create openings for court-packing.
