Is Nine Supreme Court Justices A Number Set In Stone?

Short Answer: No

Given the Republican senate leadership's unprecedented refusal to consider President Obama's Supreme Court nominee in early 2016, there is some chatter in Democratic circles these days regarding the possibility that a newly elected Democratic president, in 2021, might find her/his legislative agenda blocked by the current court (think anti-trust laws, for example).   What to do?  Well, theoretically, congress could add a tenth, even an eleventh seat.

Obviously we're a long ways from 2021, but the argument for adding seats to the Supreme Court has already been presented.  Essentially, the case is that:

  * A fair-minded seat was recently stolen
  * Seats have been added and subtracted before (though nine has been the number for 150 years)
  * Every presidential election for the past 25 years, except one, has seen more votes for the Democrat than for the Republican; and yet we have a conservative, Republican court

Doubts regarding the wisdom of such a case are many, but what is assumed is that adding seats would be an act of sheer partisanship.  The Democrats, or Republicans for that matter, would ram through the necessary legislation and tradition be damned.

But what if the adding of seats were done in a bi-partisan manner?

Assuming that an odd number of justices is desirable, there could be an agreement between parties that two seats be added immediately (one being the unfairly ignored Obama nominee), but that they be in place only so long as the newly elected Democratic president were in power (either 4 or 8 years), whereupon the number would be allowed to return to nine (through natural attrition: retirement or death).  This would thus neutralize the appointments made by our current president.

Why would this be fair?  Our current president's tenure is besmirched by scandal; and, his first appointment was the result of an unfair trick.

And what would the most likely outcome be?  Two new Democratic appointments (assuming a Democrat is elected in 2020), plus the replacement of the two most senior liberal justices, leaving a December 31, 2021 court evenly split between conservatives (Roberts (66), Thomas (73), Alito (71), Gorsuch (53), and Kennedy's replacement) and liberals (Kagan (61), Sotomayor (67), and the three new appointees), plus the centrist Garland (69).  Projecting another 16 years into the future (time enough for a return to nine justices), all the current members save Gorsuch (69) and Kagan (77) would be in their 80s and if not already retired, soon to be so: Thomas at 89, Alito at 87, Roberts at 82; and Sotomayor at 83, plus the centrist, Garland at 85.

This would be the fairest outcome, and one that would eventually uphold the Supreme Court's traditional number of justices: nine.  It would also emphasize the judicial balance that the American people expect from their court.