Expanding the number of Supreme Court Justices is long overdue.

::::::::

Stop Decrying "Court Packing"

A change in the number of seats on the Supreme Court is not "court packing." Changing the number of seats on the Supreme Court does not "pack" the Court. It does not "fill up" or "cram" the Court. Increasing the number of seats on the Court brings an outdated statute into the 21st Century and makes the Third Branch of Governmentthe branch that has the most direct involvement in the lives of every day citizens (i.e. the judiciary)more representative of the People it is supposed to serve.

Yes, the judiciary is the branch of government that has the most direct involvement with the People. Not Congress. You only deal with Congress individually near election dayor if you are unlucky enough to be on your elected official's email account or other social media stream of nonsense when they want to tell you what to think. Not the other way around.

Sure, you can write to them. You can call. You get a polite underpaid (meaning "unpaid") intern who will respond "I will let the [fill in the blank with the title of your elected official] know your views. Thank you for your call."

Yes, the legislature affects the People in sweeping ways. That is the purpose of legislationenacting laws that determine how our society will behave and the way our society will work.

Notice the word "will." Not "should." "Should" suggests something better, something of higher quality. "Will" is an order, a mandate, a dictate, a command.

We hope that our elected officials actually enact legislation that We the People want for our nation and our society. We hope that other influences are not controlling the decisions made by those for whom We the People cast our votes.

We hope.

Then there is the Executive Branch. The Executive is not the branch of government that most directly affects our daily livesunless your optical nerves are fused to some digital device connected to social media feeding you the bovine fecal matter the administration serves daily like an intravenous solution of sludge.

Not so with the judiciary. At the national level, in the federal judiciary, we have little say in who will sit in that courtroom and issue rulings and judgments. But unlike any other branch of government, We the People have the right to stand in that courtroom and directly speak to that person issuing those rulings and judgments. We have the right to engage with that person, argue our position, seek redress, seek compensation, fair treatment, justice. And that person sitting in judgment must make those decisions, issue those rulings, those judgments to us face to face. We can file a petition, a complaint, a demand at any time. And the third branch of government must address it. The third branch of government must make a decision. It might not be the decision we want, it might be that our claim is too late or frivolous, or that what we seek is not something the law permits. But the third branch must respond. And it must respond to us directly.

When We the People deal with the third branch, no one responds with "I'll let the judge know of your concern. Thank you for your call."

The Third Branch provides government to the People largely based on geography and population. Both state and federal court districts are created based on location and population density. At the state level, for some states, the people elect or confirm judicial officers. At the federal level, the People do not. But at both levels, the judiciary has a direct relationship to the number of people in a specific geographical location.

Except the Supreme Court.

Article III of the U.S. Constitution established the federal judiciary. It is a short description of how the Third Branch of government is to work. It is general in its description and, for the structure, lacking in detail. It leaves to Congress the specifics. Except for duration of service. Article III establishes life tenure for the federal judiciary. The details of how Article III works came in the Judiciary Act of 1789.

So stop talking about term limits for Supreme Court Justices. That requires amending the Constitution. And that isn't going to happen.

Even if there was a chance of passing a Constitutional Amendment, the process takes years. It will not solve the problem the nation faces right now.

The Supreme Court needs to be removed from politics.

The purpose behind life appointment of federal judges was to remove Article III as much as possible from the ever-changing winds of politics. It was to ensure that the judiciary responded to the People fairly, justly, equally according to and under the law. It's purpose is also, where necessary, to tell the other two branches that they are off their rocker.

The Supreme Court is no different. It is the final court of recourse for We the People. But We the People have no right to have the final court respond to our petitions, complaints, claims. What Americans either forget (or more likely never knew) is that no one has a right to have the Supreme Court hear their case. The Court itself decides what it will hear.

And the reason for that is because statutes say sonot the Constitution. Since the Judiciary Act of 1925, the decision to take a case or not to take a case has been entirely and solely up to the Court itself.

Think about that.

The Constitution does not limit the cases the Court reviews.

A statute that is nearly 100 years old does.

The practical reason is that the Supreme Court is too small to handle the number of cases that ask the Court for review.

Yes, the Supreme Court is too small to handle the workload. Roughly 9,000 to 10,000 requests (petitions) are filed each year asking the Supreme Court for review.

Between 80 and 100 are actually accepted by the Court.

The Supreme Court accepts less than 1% of the cases that petition for review. The lower courts don't have that luxury. Every case that is filed in the district court must be handled. It must be considered. After the district court issues a final ruling, the parties have the choice to seek appellate review from the circuit courts of appeal. Those appellate courts mustreview any case that follows the proper procedure for making the request for review. In 2019, the number of filings in the federal courts of appeals was 47,977.

What do you expect from 9 people? How are 9 people supposed to consider and rule on 10,000 cases in one year?

And why would We the People want 9 people deciding critical issues that affect our lives?

Here is another fact that seems to be lost on Americans: there is nothing magical about the number 9. (Perhaps the number 3 is a magic number, if School House Rock is to be believed, but there is nothing magical about the number 9).

The number of Supreme Court justices varied during the first one-hundred years of the court. The first court, under Chief Justice John Jay in 1789 had 6 justices. Yes, only 6. An even number. Yes, the Court could be evenly split on decisions.

Nothing in the Constitution forbids this.

During the first 80 years of the Court, the number of justices changed 7 times. The number ranged from as few as 5 to as high as 10. The Judiciary Act of 1869, also known as the Circuit Judges Act of 1869, set the number of justices for the Supreme Court at 9.

Compare this with the 179 judges in the United States Court of Appeals. With 13 Circuits, there is an average of 14 judges in each Circuit Court, the smallest (the First Circuit) with 10 judges and the largest (the Ninth Circuit) with 29.

Yet We the People have been beholden to a number of justices by a law that has not been changed for 150 years.

The approximate population of the United States in 1869 was nearly 39 million.

The approximate population today is over 331 million.

So in 1869, there was one Supreme Court Justice for ever 4.3 million people. That ratio today is one Supreme Court Justice for every 36.8 million people.

And, I can't emphasize this enough: that number is based on a statute that is 150 years old.

Not the Constitution. A statute. Enacted by Congress.

And it can be changed. By Congress.

To keep the ratio nearly the same as it was in 1869, we would have nearly ten times the number of Supreme Court Justices. But nothing in the Constitution requires the ratio of 1869. And nothing forbids it. It is unlikely, however, that Congressof any erawould have the intestinal fortitude to increase the number of Supreme Court Justices to nearly 90. But what about 29the same number as the largest Circuit? Or 14the average number of judges for the 13 Circuits? Or 15, if you happen to believe that odd numbers are more appropriate. Or perhaps 17 or 19 if you like twin prime numbers less than 20.

So, yes, Virginia, We the People do have the right to change the number of justices on the Supreme Court. And it doesn't take a Constitutional Amendment.

And it is about time that We do so.

Increasing the number of justices solves the problem of partisanship and political influence on Article III. It also solves the problem of the absurdity that the Supreme Court only reviews a paltry 1% of cases that seek review. Increasing the number of justices on the Supreme Court dilutes the influence any one administration (and any one political party) has on the make-up of the Court as each administration attempts to engage in the manipulation game to promote its own agenda and enforce its own view of how We the People should live our livesas individuals and as a community. Article III is about justice, fairness, and equal treatment under the law. Article III is about giving We the People access to our government, to complain, to petition, to seek redress of wrongs by one another and, most importantly, seek redress of grievances against our government. What We the People forget, and what our elected officials try to ignore, is that our government is Of the People, By the People, and For the People.

And it must remain so.

Authors Bio:
David J. Kaloyanides has been practicing law in Southern California for nearly 30 years. A Certified Specialist in Criminal Law, Mr. Kaloyanides has represented over 300 clients facing federal criminal charges. Mr. Kaloyanides has also represented clients charged with capital offenses in both federal and California State court. Mr. Kaloyanides also represents clients in First Amendment Civil Rights actions focusing on free speech and establishment clause violations. Mr. Kaloyanides is a member of the List of Counsel for the International Criminal Court in The Hague.