In response to the leaked ruling on abortion, many on the left are revising the idea of packing the Supreme Court. For example, they could try to put five new liberal justices on the court to overwhelm the voice of the conservatives.
This strikes me as a little silly, and very like other proposals where you wonder what’s going to stop the other side from doing the same thing once they take charge.
The goal should be to make the court less political, not more, and I’ve often thought the best way to do that is to make it way bigger — and to make the terms shorter — so that no individual justice would have that much say over things. (Remember when almost all controversial cases came down to how Anthony Kennedy was going to vote?)
Imagine there were 58 Supreme Court justices. Eight would be appointed by the president (and confirmed by the Senate), and the other 50 would be appointed by the States. Each would have an 8-year term, so — generally speaking — each president would appoint one justice every year.
Any given case would still be decided by nine justices, but they would be randomly selected from the pool of 58.
This would substantially water down the role of any single justice and would make the composition of the court more responsive to the mood of the people.
The question is, would that pool of judges be more or less polarized? It wouldn’t help de-politicize the court if the 58 justices ranged from crazy on this side to crazy on that side, so the randomly selected nine might go too far one way, or too far the other.
One way to avoid extremism is to have a more diverse group of people making a choice. Gerrymandering is a problem because political parties draw lines that allow them to have safe liberal seats, or safe conservative seats, which tends to push the candidates to the extremes. If a congressional district is mixed, they’re more likely to elect someone who is closer to the center.
I’m sure how to apply that concept to this issue. but it’s worth considering. I.e., broaden the base of people who get to select Supreme Court justices.
But the more time you spend thinking about this, the more you realize there is no perfect procedure that’s going to get moderate, reasonable decisions out of a collection of partisan politicians. We might be able to bend things towards less partisanship, but we’ll never get rid of it. And it might not even be a good idea in any event.
An intriguing idea. Rights shouldn’t come down to the whims of 5 unelected judges. And I agree very much that broadening the base of Senators who vote on confirmations is a good idea. The extremes hijacked the process in the last 30 years which is why nomination fights have become contentious. One tweak I would make to your suggestion and that is that a ruling by any one of the 9-judge panels must be binding on the other panels. Otherwise you’d have split precedents and that would foster even more division in the court and the country. The law has to be settled and predictable at some point (BTW, I’m normally not a fan of messing with the court’s structure but the time may have come to at least entertain the idea).
You raise an interesting point about one 9-judge panel disagreeing with another. It’s possible that my solution would result in things ping-ponging back and forth between different panels every term.
As much as ping-ponging is a problem, an equal challenge is frozen precedence that’s set on a flawed interpretation of the Constitution/law or highly political basis. For instance, let’s say the court reverses its 1967 decision on interracial marriage and can never be addressed again. Would that be best for the country? Seems to me, ping-ponging is an inherent evil that has to be endured. Yet, the question is how to limit it so that it doesn’t enable dysfunction and encourage games that are played to curry political favor.