Althouse: "All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues."

September 21, 2020

"All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues."

"And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large. In an earlier article, responding to Democrats’ plans to 'pack' the Court with several additional justices whenever they get control back, I suggested going a step further, and add fifty new justices, one each to be appointed by every states' governor.... Under my proposal, the death or retirement of a single justice wouldn’t be much more than a blip in the news, instead of something serious enough that there are people talking about violence in the streets. A Supreme Court composed of 59 justices wouldn’t have the mystique of the current Court — you might believe in 9 Platonic Guardians, but the notion of 59 such is absurd. And since governors would presumably select people from their own states, it would bring a substantial increase in diversity to the Court."

Writes Glenn Reynolds at USA Today.

53 comments:

gilbar said...: i foresee about a 1,000 justices within a few decades
each change of party rule, will lead to the addition of a few hundred more seats; 9/21/20, 11:12 AM
gilbar said...: want to see the democrats (and the rinos) unite in unity?
propose that; THE PEOPLE should be able to elect Justices; 9/21/20, 11:15 AM
Koot Katmandu said...: I like that idea. It is better than we have now. Now they pretend to follow the law when they are just lawfare agents. I think life appointment needs to go too. Give them a 10 year hitch and move them out. Pipe dream though. Amendment near impossible.; 9/21/20, 11:16 AM
Hammond X. Gritzkofe said...: What is that elusive magic number?; 9/21/20, 11:16 AM
Freeman Hunt said...: Now that's an interesting idea.; 9/21/20, 11:17 AM
MayBee said...: perfect; 9/21/20, 11:19 AM
Sebastian said...: "All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues."

IOW, the essential corruption of American "law," as noted by the commentariat here.

Ginsburg will be remembered as making the corruption transparent: for her, as for all progs, constitutional law and most statutory interpretation were all politics, all the time. I respect progs in this regard: they focus on results.; 9/21/20, 11:21 AM
Amichel said...: I don't think that's a bad idea. Give the court a partisan and geographic balance that better represents the country as a whole.; 9/21/20, 11:22 AM
Fernandinande said...: unrepresentative of America at large

Good point. Since lawyers are about .4% of the population, only .4% of the SC should be lawyers. I'm not kidding.; 9/21/20, 11:24 AM
Mike (MJB Wolf) said...: Glenn is very good at modernizing Swift’s modest proposal, and he’s presented several rich opportunities a year by our absurd national polity.; 9/21/20, 11:26 AM
bleh said...: What an idiot. If the Supreme Court were to grow so large, it would become more of a legislature and less of a court. It's exactly the wrong thing to do if you care about the law remaining distinct from politics. Justices would spend most of their time whipping/rounding up votes and it would become a system of horsetrading. And the pressure on them to take and decide every case would be immense.

At least now the Justices can control their docket and grant cert mostly in cases that deal with basically apolitical legal issues or where there's unanimity (or something close to it). Sometimes there are interesting cross-ideological coalitions that generate several concurring and/or dissenting opinions. The current system ensures that, at least in most of the non-unanimous cases, the different judicial interpretive philosophies can be expounded upon, defended, challenged and seriously considered.

A mega-Court would devolve into pure raw politics.; 9/21/20, 11:31 AM
daskol said...: Ha, those Dom Court-packing pikers were only going to add a few justices.; 9/21/20, 11:33 AM
Michael K said...: "The switch in time that saved nine," was the beginning of the political Court.; 9/21/20, 11:34 AM
Anthony said...: This: The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

That part I hadn't really considered before, at least not consciously. But that's the nub of it.; 9/21/20, 11:37 AM
Readering said...: Going to 13 should suffice. Or just go back to 9 in January. Not much to ask.; 9/21/20, 11:41 AM
MayBee said...: Why can't we all be justices? We are all created equal, after all.; 9/21/20, 11:42 AM
Narayanan said...: Imagine a Spectrum - where would you place USA Constitution?

Terse as Chinese Fortune Cookie ------------- overgrown dead wood like CA forest floor; 9/21/20, 11:42 AM
Narayanan said...: Or simply cancel the concept of Original Jurisdiction - make it simply a trial court for Federal Functionaries.; 9/21/20, 11:46 AM
wendybar said...: Bahahahahhahahahah....Non Political???? Since when??? Bahhahahhhahhahhahah!!!!; 9/21/20, 11:47 AM
cubanbob said...: Can Congress overturn Supreme Court decisions? If so, then perhaps some of the more egregious ones can be overturned by Congress with the consent of the President.; 9/21/20, 11:51 AM
rehajm said...: THE PEOPLE should be able to elect Justices

Better yet, make them all Justices...; 9/21/20, 11:52 AM
Narayanan said...: And when extremely important prizes are at stake, people fight. And get hysterical.

as for getting hysterical - for comparison : "Academic politics is the most vicious and bitter form of politics, because the stakes are so low."

... the minds are small.; 9/21/20, 11:52 AM
stlcdr said...: Isn't the whole point of the Supreme Court to determine the legality (constitutionality) of any given law? If 9 people can't do that then there's not a hope in hell that more people would be better suited to the task.

Also, relying so much on the supreme court demonstrates the incompetency of the house and senate.

Also (also), the supreme court is not beholden to the people but the laws of the United States. The president, who is charged with executing the laws faithfully is also charged with appointing justices to ensure those laws are just. This is one of the powers of the President, not the people or Congress.; 9/21/20, 11:53 AM
Triangle Man said...: This plan gives the shithole states too much power and influence. Moreover, too few of the various arms-pit of the nation are capable of sending sufficient numbers of their citizens to Yale Law, or even Harvard, to ensure that a qualified candidate for SCOTUS would be available. Glenn is just trying to find a way to get himself from Rocky Top U to the Supreme Court.; 9/21/20, 12:21 PM
PM said...: I'm for de-activist-ing the Court.; 9/21/20, 12:26 PM
ConradBibby said...: Terrible idea. It would make the Court exactly what the left wants it to be: a super-legislature driven by politics. About the only reform I think would be worthy of serious consideration would be a Constitutional amendment to keep the number of justices at 9 and a phased-in, mandatory retirement at say 30 years of service or when a justice turns 80, whichever comes first.; 9/21/20, 12:31 PM
GingerBeer said...: Future headline: Supreme Court Overturns Roe v Wade, 269-145; 9/21/20, 12:33 PM
Amexpat said...: A better solution would be to do away with life appointments for SCOTUS and make them for 18 years, which is a long enough period to insure independence and curtail Justices staying past their prime.

With this system, there would be a retirement and new member every two years, which would insure that each Senate gets a confirmation and the POTUS gets two appointments during his term. This would do away with the randomness of some presidents getting no appointments during a 4-year term and others getting multiple. There would need to be some mechanism to deal with premature retirements or death.; 9/21/20, 12:37 PM
Douglas B. Levene said...: The Chinese Supreme People's Court has several hundred members. It theoretically doesn't have the power to strike down laws as unconstitutional but it does have the power to enact laws in the guise of "guiding cases." You could think of it as an administrative body - it regularly issues rulings that look a lot more like administrative regulations than decisions about particular cases. I don't think that would be a particularly useful model for the US to follow. I lean instead towards making the Court and SCOTUS appointments less important by limiting justices to non-renewable, 10- or 14-year staggered terms.; 9/21/20, 12:55 PM
Yancey Ward said...: bleh,

I think the court is already, increasingly, like that, even with just 9. There are several decisions made over the last 10 years that I felt were clearly the result of horsetrading between Roberts and the left side of the court.

The Democrats, of course, will never go for Reynold's proposal- there are simply too many small rural states that would make it very difficult for the Democrat to reliably have a majority of governors........at least until the Democrats make Puerto Rico and D.C. states.; 9/21/20, 1:06 PM
NYC JournoList said...: Trump will likely ram through his pick prior to the election ... and then add another four seats (on the theory that every circuit needs a supreme overseer as was originally done). Then the court will be 10-3 and there will be a solid principle dictating the number of needed justices.; 9/21/20, 1:48 PM
Craig Howard said...: When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

Not always.

The Court declared Obamacare constitutional; Congress could have terminated it anyway.; 9/21/20, 2:16 PM
Gahrie said...: I sure hope he was being sarcastic. That's the dumbest idea I've heard in a while, if for no other reason it would mean 50 more staffs and all the added costs and bureaucracy that would entail.; 9/21/20, 2:19 PM
James K said...: I'm for de-activist-ing the Court.

Yes, though if and when the court undoes previous activism it is considered "activism" by the left. And some 'conservatives' like Roberts seem to buy into that.; 9/21/20, 3:07 PM
Calypso Facto said...: Amexpat said..."A better solution would be to do away with life appointments for SCOTUS"
Yes. Could still be issues if a justice had to leave early for some reason (health, etc.), but would make for a lot more stability than the current set-up.; 9/21/20, 3:34 PM
Left Bank of the Charles said...: Then why not one Justice for each Congressional district?; 9/21/20, 3:45 PM
Rick.T. said...: In the words of that great philosopher Cousin Eddie: "BINGO!"; 9/21/20, 4:13 PM
campy said...: "i foresee about a 1,000 justices within a few decades
each change of party rule,..."

LOL. There won't be any more changes of party rule after the next one.; 9/21/20, 4:29 PM
sparrow said...: I'm with Amex: I just outlined the same concept to my son this morning.

While a larger court would yield a more representative sample, the court is designed to stand up for the constitution and not the prevailing politics of the populus.

The changes needed are better mechanisms to constrain the court through checks like term limits. I'd like to see a check on specific decisions such that if 35 state legislatures voted to void a specific Supreme Court decision within a fixed time they could.

In any case: the mechanics matter less than the integrity of the people on the court. So given human nature there will always be bad decisions from the court.; 9/21/20, 4:30 PM
Stephen said...: This is the right direction.; 9/21/20, 4:39 PM
Static Ping said...: I don't think Glenn's idea is particularly good, but the entire idea of the Supreme Court was not particularly good. It is evident from the Constitution that they thought it important to have a judicial branch to balance the other two branches and protect the Constitution, but they really didn't have an idea how it would work exactly. It managed to function well enough for nearly 200 years because no one realized how easy it would be to abuse it once you get past that norms thing or taking law and the Constitution seriously thing, and because Congress was jealous of its own power and would not take it lying down if judges started making laws. Unfortunately, our Congress has decided to stop making laws in favor of letting judges makes law by fiat and by bureaucrats make laws by interpretation so they don't have to.

It is notable that before this era of judicial activism, when the court was actually tested with something important, like the Dred Scott decision, it flopped on its face.; 9/21/20, 4:46 PM
Bruce Hayden said...: “Trump will likely ram through his pick prior to the election ... and then add another four seats (on the theory that every circuit needs a supreme overseer as was originally done). Then the court will be 10-3 and there will be a solid principle dictating the number of needed justices”

Silly lib. A lot of projection going on there. For one thing, McConnell has eschewed going first, but is more than willing to up the ante when the Democrats go first. Thus, the Senate Dems eliminated the filibuster for 99% off federal judges (870 district and appeals court judges), and the Republicans took it the last 1% with (9) Supreme Court Justices. In this case, the Republicans won’t expand the Supreme Court first - but would be more than willing to do it if the Democrats do it first.; 9/21/20, 5:37 PM
The Vault Dweller said...: I agree with Instapundit's diversity principal the most out of all of his points. Gorsuch is a breath of fresh air because he lived most of his adult life in Colorado I believe. Though I don't think Glenn's suggestion that justices could not be lawyers or judges would work out. Even watching fairly smart people who are not lawyers ask questions on the judiciary committee has convinced me that without legal experience many people would miss important issues. Now this could be because they are politicians and are so making a political exercise of judiciary committee hearings but many seem too focused on the facts or end result of a case rather than the methodology sued to arrive at a judgment. Abortion rights are still the biggest driving factor for judicial battles. If Roe, err I guess Casey now, was overturned and that lasted for probably about 10-15 years I suspect that drive would largely go away as the different states would arrive at democratic solution for how to deal with abortion in their states and I suspect most people would lose the desire to fight over it any longer. I suppose if there were a constitutional amendment which guaranteed certain abortion rights, that would also lessen the drive to fight over that issue. While I think the same-sex marriage case was a bigger judicial mistake or 'discovering' a new right in the 14th amendment, I don't think this is a big political issue, since when it comes down to it most people really don't care if gay folks get married.; 9/21/20, 5:41 PM
Gospace said...: stlcdr said...
Isn't the whole point of the Supreme Court to determine the legality (constitutionality) of any given law?

No. That’s a power the SC seized in Marbury vs Madison in 1803. Nothing in Article III gives them that power. Congress could very well pass a law, and state quite clearly the law is Constitutional and not subject to judicial review for that.

Where I think that power should be exercised? Outlining the legal methods of execution- hanging, firing squad, the two traditional ones, and whatever other ones they are to include.; 9/21/20, 6:13 PM
rcocean said...: I find that kind of talk so BORING. "We" didn't make the SCOTUS so important. The Left did. It was the only way they could force their liberal views on the American public, when they couldn't to it through the ballot box.

There's something weird about the American Center-Right. Its always full of "wise old greybeards" who think they're "the only adult in the Room", and "We" need to stop fighting and all get along. Hello, dummies! Its the LEFT that's attacking people's homes, screaming, getting emotional, and always upping the ante. So, ATTACK THE LEFT. Stop, with the goofball "We all need to calm down" and "Why can't we all get along?". Again, its not "We". Its not "We" who have made the court important, its the LEFT. And its going to keep on being important until the LEFT changes.; 9/21/20, 6:31 PM
rcocean said...: Rod Dreher and David French are perfect examples of this. Instead of attacking the Left for their terrible behavior, they start moaning about how the SCOTUS is TOO IMPORTANT, and wringing their hands. French, of course, is dishonest, and comes up with a "Compromise" that helps the LEFT. Dreher, meanwhile, just blathers away about how nasty and horrible the situation is, and well, both sides are wrong, and "hey, can you buy my book?".

Never do these wimpy-cons ever come out and put the blame where it resides. Why? Because they like the LEFT, they get $$ from liberal/left publishers, and they DO NOT WANT TO FIGHT THE LEFT. They'll trash the Covington Kids, Trump, Rush limbaugh and Ann Coulter. But their liberal left buddies at the NYT/WaPo? No thanks.; 9/21/20, 6:37 PM
iowan2 said...: The whole thing about how many justices and how to structure their appointment, seems simple to correct.
Every President get to appoint one justice per term. Even on a death, nothing until next term. The death while serving is solved by setting the number at nine. Then when the President makes their choice, the oldest in age, plus years of service, is pushed off. That will eliminate appointing 45 year olds with little judicial experience. Getting appointed will not be a death sentence. I can see a nice natural flow developing where this becomes routine.; 9/21/20, 7:22 PM
NYC JournoList said...: Hey Bruce ... not a lib here. Strategically Trump would have nothing to lose by packing the court once the election is passed. Most likely it would be shot down by the Dems, thus undermining their attempts to do the same when they next control both the Senate and Presidency as FDR’s attempt killed the idea for 80 years. And if succeeds, then all is good. Not a traditional Republican play, but very Trumpian. Redefine the rules preemptively.

Trump would have nothing to lose as he cannot run for a third term.; 9/21/20, 8:15 PM
Michael K said...: The short version is that Roe V Wade set the Supreme Court on the path is treads today. Abortion was legal in California in 1969.; 9/21/20, 8:18 PM
Kirk Parker said...: stlcdr,

"Isn't the whole point of the Supreme Court to determine the legality (constitutionality) of any given law?"

Oh heck no. John Marshall invented that out of whole cloth.; 9/21/20, 8:43 PM
Jeff said...: Gee, a body where each state is represented equally with members for each state chosen by officials from that state. Where have we seen that before? Maybe repeal the 17'th Amendment?; 9/22/20, 7:16 AM
Freder Frederson said...: How stupid does Reynolds think liberals are? His solution (9 Justices selected by the president, the remaining 50 by individual governors) would lock in a conservative majority on the court. California, New York, Illinois, and yes even Texas, would be entitled to the same representation on the court as low population conservative states.; 9/22/20, 7:33 AM
hstad said...: Freder Frederson said..."...How stupid does Reynolds think liberals are?,,,"

Well you asked or it! "Politics" makes us stupid. Your comment is a perfect example. You've must've been asleep over last 25,000 years to come up with such an ill-informed comment.; 9/22/20, 5:29 PM