Recently, retired securities lawyer and substack influencer, Robert Hubbell, repeated his call to expand the number of justices on the U.S. Supreme Court (SCOTUS). An armchair lawyer myself, Hubble’s comments usually prove insightful and convincing. However, his conclusion this time that the number of justices on the Supreme Court needs to be increased seems hyperbolical.
More Justices: Areas of Disagreement
My disagreement is not due to the decisions the Roberts court has adjudicated over the past twenty years. The Court’s decisions on Roe vs. Wade and Public Citizen provide two prime examples of their decisions eroding the public’s rights in favor of the moneyed elite. In addition, they gave legal immunity to Donald Trump and any future presidents. The list goes on and on, but you get the idea.
Indeed, Hubble noted in an earlier column, “The Case for Expanding the Supreme Court Never Has Been Stronger.” Very true. But, what size would be optimal? What if political conditions change and Democrats gain control of Congress and the White House? Should it be the thirteen that Jonathan Last recommends in the Bulwark? Or possibly 15 or 17 that other political observers have proposed?
On the contrary, Hubble declares such recommendations are too timid. Through an elaborate array of statistics, he demonstrates the country’s increase in population and the economy since its inception. Consequently,, Hubble advocates an increase to at least 21 or more Supreme Court justices. In his view, such an increase meets the legal demands that overtax the country’s legal system. And, it addresses the problem of court decisions held hostage by a reactionary, activist minority.
More Justices: Three Objections
1. Role of Economic Growth
In addressing Hubble’s proposal, my objections are several. First of all, court expansion based on economic growth based on an arbitrary starting point seems myopic at best. Given America’s exponential economic growth since its inception during the start of the Industrial Revolution, the Court would need hundreds of members to address business-based legal filings alone. That number omits all the personal, criminal, and governmental cases the federal court system handles every year.
2. Management Problems
Forty or 50 Supreme Court justices might seem fanciful, but the number does indicate the practical problem of managing such a bureaucracy. If the number of justices was to become too great, the Court would or could disintegrate into factions vying for their opinions ultimately to become law of the land. That seems to be the way the Court is working now. However, its constituents would resemble congressionals rather than jurists. Group politicking and/or log-rolling would become the order of the day. And legal decisions would be based on what would attract a majority opinion rather than strictly interpreting the law.
3. Would More Justices Eliminate the Problem?
Third, were the number of justices to expand to a more workable number, say the high teens or low to mid-20s, would this number be sufficient to eliminate the court-stuffing practices of recent years? Probably not. But, as Hubble observes, “amending the Constitution to impose term limits, staggered appointments, and other reforms that require an amendment begins to look like a more reasonable path forward.”
More Justices: Conclusion
It is at this point that Hubble advocates doing the hard work of demoncracy, i.e. by bring out the vote and implementing changes. Whatever those changes might be, they should be considered in advance of having the power to implement them.
History & Tradition
At this point, let’s not forget that the idea of America being a land of equaliatsy before the law was a fanciful notion reserved for philosophers like Plato and Voltaire. There were no templates, no nations from which to borrow ideas or see which techniques worked best. America was an experiement. Most nations, including Great Britain, expected the fledgling United States to collapse within a few years.
Conclusion: More Justices or More Justice?
Given all the time and events that have elapsed since then–250 years– isn’t it time our Constitution underwent some adjustments? The political history of the United Kingdom provides a millenium-long narrative of chipping away the powers of the king. My October 2025 post joined many other voices to show how the efforts of united groups of citizens can work to address some the flaws in the system. Or address some of the shortcomings that the evolution of our politics has created?
Rather than Last’s “ruthless aggression” or Hubble’s hostile legal takeover, now might be a good time to consider some positive, workable, even vicionary alternatives that appeal to the body politic in November and in 2028. In his fumbling, autocratic way, the Great Unifier (Donald Trump) has provided nsight to curb the worst flaws in our justice system. Conceiving a way to hold the justices accountable for their actions would be a good first step. Beyond that, a moderate Increase in the number of justices to create a factionless, workable body be a desirable followup?
What do you think? Let us know in the Comments section below:
