OPINION:
If you had told the framers of the Constitution that nine unelected judges would one day decide the most divisive moral and political questions in America, including marriage, abortion, health care and guns, they wouldn’t just be surprised. They would be alarmed. Judicial supremacy was not part of the original design.
Yet today’s Supreme Court functions as exactly that: a de facto superlegislature, with sweeping influence over nearly every domain of American life. This isn’t a problem only when the court gets it wrong; it’s a problem even when it gets it right. It’s also a problem when it stays silent when it should speak. Concentrating this much power in so few hands contradicts the constitutional architecture of checks and balances. Unless conservatives are willing to confront this structural reality, originalism will remain more theory than practice.
It’s time to talk seriously about expanding the court, not as a partisan weapon but as a constitutional correction.
Nine isn’t sacred; the Constitution is.
Contrary to popular belief, the Constitution does not specify the number of justices on the Supreme Court. The number has changed seven times in American history, ranging from five to 10. Congress has that authority under Article I, Section 8, and it has used it before for principled and political reasons.
The modern fixation on having nine justices is a historical accident, not a constitutional mandate. It became tradition not through any considered judgment but through inertia. Like many traditions that outlive their usefulness, it has turned into an idol that conservatives have wrongly treated as sacrosanct.
The Founders cared deeply about balance, not bench size. They built a system to resist concentrations of power, not to enshrine them. If a rigid nine-member court now serves to entrench judicial supremacy rather than check it, then it’s the number, not the Constitution, that must change.
Originalism needs an institutional engine.
Many conservatives champion originalism, the belief that the Constitution should be interpreted according to its original meaning. This framework has rightly reshaped legal scholarship over the past four decades, but jurisprudence doesn’t move by logic alone; it moves through institutions.
A 5-4 or even 6-3 majority doesn’t mean much if justices drift toward living constitutionalism or flinch from applying original meaning when politically inconvenient. Conservative legal theory will remain neutered if it lacks the numbers to turn ideas into precedent.
Expanding the court would provide the means to make originalism dominant on the bench. This isn’t about packing the court with loyalists. It isn’t the right versus the left. It’s about restoring a constitutional vision sidelined by decades of elite consensus and interpretive relativism. It’s about giving constitutionalism, not judicial activism, critical mass.
Congress has the power. Conservatives need the will.
Structural reform is not lawlessness. It’s not a coup. It’s not even new. Congress has always had the authority to determine the size and structure of the federal judiciary, including the Supreme Court. That authority exists for a reason: to ensure the courts don’t become politically unaccountable or structurally imbalanced.
For too long, conservatives have ceded this ground. They have allowed the myth of judicial neutrality to paralyze action, but neutrality is not the same as constitutional fidelity. A court that regularly invents rights, makes policy, bypasses democratic deliberation, fails to accept or to decide cases that it should or rewrites statutes by judicial fiat isn’t neutral. It’s ideological. Until originalist jurisprudence becomes the center of gravity in the court, the Constitution remains vulnerable to creative reinterpretation.
Refusing to consider reform is not prudent; it’s naive. It risks leaving the constitutional order defenseless against ideological drift masquerading as legal judgment.
The sea doesn’t care about excuses.
I once sailed a small boat alone across the Atlantic. Yes, I loved the adventure, the solitude, the freedom, but there was a deeper reason behind it. I wanted to place myself in an environment that didn’t just reward reason, common sense and doing the right thing, but one that demanded all that. The sea doesn’t care about your excuses. It doesn’t bend to denial or rationalizations. You either do the right thing or you don’t come home.
That experience taught me that integrity requires accepting that the stakes are real and action isn’t optional. Our current political environment urges us to adopt a bold clarity, stop making excuses, abandon hiding behind norms that no longer serve the Constitution, and take action.
Reform is the conservative path.
Some will argue that expanding the court sets a dangerous precedent, but the real danger lies in clinging to a broken status quo. The past 50 years have shown that judicial overreach doesn’t fix itself. It deepens, and public trust erodes with every decision that feels less like interpretation and more like decree.
Widening the bench could lower the stakes of individual confirmations, dilute the influence of any one justice and return the court to its proper role: interpreter of law, not arbiter of national morality. If done through regular legislative channels, with clearly qualified, intellectually serious nominees, it could stabilize the institution rather than destabilize it.
The goal isn’t domination. It’s restoration. A court committed to the Constitution’s text, structure and original meaning can be a bulwark against executive excess and congressional abdication, but only if we build it that way.
The court is not sacred. The Constitution is. If the judiciary’s current structure undermines the Constitution’s intent, fixing it isn’t radical; it’s necessary.
• Steve Wolfer is a retired software designer and psychotherapist. He lives in Maricopa, Arizona.
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