But how many people should it take to come up with the final word on such questions? Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws. The deep respect for the Supreme Court as an institution often blinds us to its flaws, the greatest of which is that it is demonstrably too small. Nine members is one of the worst numbers you could pick — and it’s certainly not what the founders chose. The Constitution does not specify the number of justices, and the court’s size has fluctuated through the years. It’s time for it to change again…

While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench. Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations. Jurists are often selected because they have never said or written anything remotely provocative or even interesting. Many are chosen precisely because they are relative unknowns — such as O’Connor, David Souter, Clarence Thomas and most recently Elena Kagan. Bypassing clear intellectual leaders in courts, the bar and academia, modern nominees are picked as a type of judicial blind date. The chances that we could have a legal virtuoso such as Louis Brandeis or Joseph Story on the court in the current system are at best accidental.