The only problem with this is that I fear we won't see another Republican Senate in our lifetime
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“Surely we can squeeze in another 35 or so”
Glenn Reynolds, 2018: Let’s expand the Supreme Court to 59 members
[S] since the Constitutionsets no limit on the size of the court, once the fairly longstanding tradition of nine justices is broken, the next time the GOP finds itself in power it could just raise the ante again.
As University of Chicago law professor Todd Hendersonremarks: “Please explain how this is stable? Why doesn’t it immediately unravel to a court of, say, 1001 justices? I’ll wait.”
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We need more justices, less mystique
But let me make an unorthodox suggestion: Maybe that wouldn’t be so bad. OK, 1,001 justices might be too many, but perhaps we should substantially expand the Supreme Court. After all, if the country can be thrown into a swivet by the retirement of a single 81-year-old man, it suggests that the Supreme Court has become too important, and too sensitive to small changes, to play its role constructively as it’s currently made up.
Increasing the number of justices would reduce the importance of any single retirement or appointment. And it would also reduce the mystique of the court, which I see as a feature, not a bug. Nine justices could seem like a special priesthood; two or three times that number looks more like a legislature, and those get less respect. Which would be fair.
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The Supreme Court, after all, isn’t made up of Platonic guardians. It’s made up of lawyers. If you asked Americans at random what kind of people they think are best suited to provide moral leadership, I rather doubt that lawyers would rank high on the list. The Supreme Court isn’t really some sacred body of great moral thinkers. Rather, as one of my constitutional law professors pointed out, it’s essentially a committee, a committee made up of lawyers. Underneath the robes and fancy building, that’s all it is.
Nonetheless, we’ve come to a place where the Supreme Court doesn’t just decide technical legal issues, but is called on to decide some of our most pressing moral and social questions. If the court is going to remain in that role, then it needs to be more representative of America as a whole, and less sensitive to minor changes that produce major shifts in its decisions. (And the near-universal belief that replacing Anthony Kennedy with a conservative will produce such a major shift is also an admission that the Supreme Court today isn’t about legal rigor or “neutral principles,” but essentially about politics.)
End the Harvard-Yale monopoly
So forget 15 justices. Let’s keep the nine we have who are appointed by the president, and add one from each state, to be appointed by governors, and then confirmed by the Senate. Fifty-nine justices is enough to ensure (I hope) that they aren’t all from Harvard and Yale as is the case now, and enough to limit the mystique of any particular justice. If the Supreme Court is going to function, as it does, like a super-legislature, it might as well be legislature-sized.
Making the Supreme Court less sensitive to shifts in the political winds would also benefit presidential and senatorial elections. Right now, they turn significantly on who will be appointed and confirmed to the Supreme Court. If that’s less of an issue, then voters can evaluate candidates on how they’re likely to do their own jobs, rather than who they’ll support for a different one.
Is a mega-Supreme Court an idea whose time has come? If so, we can thank those who put the issue on the table.
Unfortunately, if the Democrats win they’ll the court regardless of whether Trump has put in his choice as 9th justice: they’ll not want to risk another close call, and they’ll grant statehood to Puerto Rico and Washington D.C., thus adding four more liberal senators. Together with opening our southern borders and eliminating voter id laws, Republicans may never regain a majority and the Democrats will do just fine in the coming decade with 15 liberal justices.
But we can hope.
UPDATE: Similar prediction was posted Friday on Volokh Conspiracy. Similar, but a more sophisticated analysis
UPDATE II. Reynolds repeats his observation today:
MY USA TODAY COLUMN: Ginsburg flap shows Supreme Court, justices are too important. “When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system. And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too.”
