Expanding the Supreme Court May Be a Good Idea

I’m going to put an idea out there and all I ask is that you don’t automatically reject it. Because at first, that’s what I did and I suspect a lot of people will do the same. So please think about it, sleep on it, and give it some serious consideration.

We have a problem with the Supreme Court becoming highly politicized, particularly in the last 30 years or so. And also, while they have diversity from a sex and race standpoint, all the justices except one (ACB) are graduates of Ivy League schools and as the late justice Antonin Scalia pointed out, at that time, there was not one Protestant on the Supreme Court even though nearly half the country describes themselves as Protestant Christian. (There is now 1 out of 9-Neil Gorsuch)

So, they may look different but they run in the same social circles in D.C., New York, and Boston. Some may be called leftists and some originalists, or however you want to split them up, but they are not a reflection of experiences of the population of the entire country.

But oh what power they have. These 5-4 decisions effectively mean 1 person can dictate the rules for the rest of the country. It’s a stretch to call that representative government, much less a republic composed of highly involved citizens. The people as a whole did not select the nine robes that determine the rules. There’s no check on them. Who’s going to change a Supreme Court decision? Even the Supreme Court itself rarely does!

When the number of Supreme Court justices was increased in the past one reason for it was because the country was getting bigger and there was more work for them to do. It’s bigger now too. So maybe they do need more justices. The question is, how many? How about 50? Stay with me now.

If I were to suggest each state appoint 1 justice for the Supreme Court many will reject it and say that’s way too many for a court to have. The European Court of Justice has 27 members and has been in existence since 1952. The European Court of Human Rights has 47 members and was established in 1959. These courts have been functioning for a number of years and do their jobs with their respective number of justices. The argument that 50 justices are too many becomes weak when these two real-world examples are taken into account. Fifty justices for a Supreme Court for a country of over 300 million people is not too many.

This would put an end to the nonsensical political theater that every appointment now elicits. Consider if the state legislatures were to appoint justices from their respective state. It would be much easier for the people of the state to view the court as something other than a distant group of masterminds. This is important, it takes power away from Washington D.C. and puts it closer to the people, not the lobbyists.

When a Supreme Court position comes open nowadays, we’re all on the edge of our seats speculating how one new person can change the court. One out of 50 would have much less impact. They would be 1/50^th of the court as opposed to 1/9^th of the court. And with that spotlight gone or at least dimmed a little, maybe the judges could get back to being judges more than new-age legislators. Lobbyists would lose power too because now, instead of lobbying one place, they’d have to lobby in 50 places.

I can’t claim credit for this idea. I heard it from Michael Farris at an event a few years ago. My immediate reaction was to reject the idea. But after I thought about it more I don’t see any other plan that would better de-politicize the court and remedy the northeastern mega-plex group think that lords over us now. I don’t look for this to happen tomorrow but you have to get the conversation started somewhere. It may as well be here.