Former New Jersey AG: Number of SCOTUS justices should remain unchanged

May 15, 2019 by Ben Marquis

In response to President Donald Trump’s growing number of conservative judicial nominations — especially the two Supreme Court justices already confirmed — some Democrats have begun to openly discuss expanding and packing the courts with liberals in an effort to prevent any sort of conservative majority, or even equality, within the judicial system.

But after careful consideration, that idea doesn’t sit particularly well with Peter Verniero, former New Jersey attorney general and state Supreme Court justice, who ultimately concluded that politicians should leave the current set-up of the high court alone.

Nine is fine?

Writing as a guest columnist for the New Jersey Star-Ledger, Verniero began by quoting liberal Supreme Court Justice Stephen Breyer, who famously said, “nine is fine” with regard to discussion of expanding the number of jurists on the court.

Verniero noted that the U.S. Constitution makes no mention of how many justices should be on the court, and he pointed out that the number had fluctuated over the years before being settled at nine total with the Judiciary Act of 1869.

He further stated that, while not explicit, it was generally understood that the Constitution conveyed a lifetime tenure to Supreme Court justices as a means to guard against partisan considerations, a theme that informed a parallel discussion about whether term limits should be imposed on the justices.

Ideological ebb and flow

What Americans have seen over the years is that, despite an ebb and flow in the partisan leanings of appointed jurists over time, and in spite of some rather terrible rulings having been reached, the people of the United States are generally content with and respectful of the nine-member high court.

As for the partisan leanings of some jurists, Verniero reminds readers that on several occasions it has been the case that justices appointed by a president of a particular political party undergo shifts in thinking over time, ultimately siding against the positions of the party that put them on the court.

One potential compromise Verniero entertained in his piece is the possible adaptation to the federal level of an unwritten rule in New Jersey which specifies that no more than four of the state court’s seven justices can be appointed by the same political party, ensuring that a fairly consistent ideological balance is maintained.

Status quo

“In the meantime, I wouldn’t change the composition of the U.S. Supreme Court or alter the lifetime tenure of the justices who serve on that court. Even when I might disagree with some of their decisions, the court’s members appear to strive for principled rulings, based on their best thinking at the time of each case,” Verniero wrote.

“If such thinking is sometimes guided by a broad jurisprudential approach, whether it be from a purported liberal or conservative perspective, it does not diminish the independence of the judicial function,” he continued.

“And such independence remains the best check against the unfair excesses of government by any party, at any level. Just as the founders had intended,” Verniero concluded.

This man is considered a top legal authority in the state of New Jersey, and based on his depth of jurisprudential knowledge, he has determined that the current number of Supreme Court justices works just fine and should not be arbitrarily altered, especially for partisan purposes that would undermine the all-important independence of the judiciary.