Written Testimony of Marin K. Levy on "Court Expansion and Other Changes to the Court's Composition" for The Presidential Commission on the Supreme Court of the United States

Abstract

Court expansion and other changes to the Court’s composition implicate fundamental questions about the role and operation of our nation’s highest court. These include whether expanding the Court would harm the institution’s legitimacy, whether expansion would prompt a series of expansions in the future, whether an expanded Court could function well as a single decision-making body, and whether expansion would contradict existing constitutional norms and conventions. Even if the answers to these questions were known, there is a larger background question to be answered—namely how such considerations should be weighted in assessing any proposal to change the Court’s structure. It is no easy task that the Commission has been given, and I hope that the legal community and public at large is cognizant of this. In contrast to the subject of the panel, my own testimony will be fairly circumscribed. What I hope to offer the Commission is additional context by providing information about recent changes and attempts to change the size of state supreme courts. The descriptive analysis that follows does not itself constitute a normative argument. Rather, my goal is to provide the Commission with intra-country comparative data concerning changes to court structure, from which the Commission can draw its own conclusions. I would stress at the outset that I believe experiences with state court expansion do not offer easy lessons about the wisdom of the enterprise; and, as in any comparative discussion, one should be mindful of the differences between systems when attempting to derive meaning. Those differences include, inter alia, that the majority of state supreme court justices are not appointed but elected, that the majority serve for terms and must be reelected (or, less often, reappointed) to continue service, and that the majority have mandatory retirement ages and not life tenure. Part I will provide information regarding attempts (and successes) to alter the size of the highest court in eleven different states over a recent period of approximately one decade. Then, Part II will briefly consider the size of each state court of last resort, as they stand today.