With the current mess that the US is in, there has been plenty of talk of “what comes after” and how to think about the big structural changes needed to prevent another authoritarian from taking over and abusing all the levers of power for corruption and self-enrichment.
There are many different issues to address, but we should be thinking creatively about how to redesign our institutions to be more resilient to the abuses we’re witnessing.
One area ripe for creative rethinking is the federal judiciary, particularly the Supreme Court. Because right now, we have a system where individual judges matter way, way too much. Rather than the minor reforms and incremental changes some are suggesting, I think the solution is to go big. Really big. Expand the Supreme Court to at least 100 justices, with cases heard by randomized panels.
I’ll explain the details below, but the core philosophy is simple: no single Supreme Court Justice should ever matter that much.
President Trump has found a powerful but obscure bulwark in the appeals court judges he appointed during his first term. They have voted overwhelmingly in his favor when his administration’s actions have been challenged in court in his current term, a New York Times analysis of their 2025 records shows.
Time and again, appellate judges chosen by Mr. Trump in his first term reversed rulings made by district court judges in his second, clearing the way for his policies and gradually eroding a perception early last year that the legal system was thwarting his efforts to amass presidential power.
The actual figures are damning. Trump’s appellate appointees voted to allow his policies to take effect 133 times and voted against them only 12 times. That’s 92 percent of their votes in favor of the administration.
When Chief Justice John Roberts responded to Trump’s criticism of an “Obama judge” back in 2018, he insisted that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.”
The data suggests Roberts was either naive or lying.
The Times analyzed every judicial ruling on Mr. Trump’s second-term agenda, from Jan. 20 to Dec. 31 of last year, or more than 500 orders issued across 900 cases. About half of rulings at the appellate level were in Mr. Trump’s favor — better than his performance with the district courts, though worse than his record at the Supreme Court, where the rulings on his agenda have almost all been on a preliminary basis in response to emergency applications.
And there it is. The higher you go up the judicial food chain, the better Trump does. District courts ruled in his favor 25% of the time. Appeals courts: 51%. The Supreme Court: 88%.
Now, some will argue this is the system working as designed—higher courts correcting overzealous lower court judges. And sure, that’s part of what appeals courts do. But the pattern here isn’t just about legal merit. It’s about how much individual judges matter, and how vulnerable the system is to ideological capture.
The uniformity of the judges’ votes is reason for serious concern, said Mark L. Wolf, a former federal judge nominated by President Ronald Reagan. Judge Wolf recently retired so he could speak more freely about what he has characterized as the threat that Mr. Trump posed to the rule of law.
“If you’re an impartial judge, the same party is not going to win every time,” he said. “Because the facts are different, the law is different, and so the result is often going to be different.”
This gets at the fundamental problem. When you have a small number of judges with lifetime appointments, whose ideological leanings are known quantities, those individual judges become enormously powerful. A single justice retiring or dying at the wrong time can reshape American law for a generation. That’s insane. No single person should have that kind of power over the constitutional rights of 330 million people.
And it gets worse. The Times found that three Trump appointees on the D.C. Circuit—Judges Gregory Katsas, Neomi Rao, and Justin Walker—accounted for more than half of all pro-Trump votes from Trump’s appellate appointees. Three judges. In one circuit. Exercising “outsized influence.”
Combined, Judges Gregory G. Katsas, Neomi Rao, and Justin R. Walker voted 75 times in favor of the administration — slightly more than half of the pro-Trump votes from Mr. Trump’s appointees logged by the Times analysis — and only three times against.
So what do we do about this?
The typical response from Democrats when they’re in power is to either accept the status quo or propose modest reforms that don’t actually address the structural problem. Republicans, meanwhile, have been playing the long game on judicial appointments for decades, understanding that packing the courts with ideologically aligned young judges is one of the most effective ways to entrench their policy preferences beyond electoral accountability.
We need to think bigger. Much bigger.
Here’s my proposal: Expand the Supreme Court to at least 100 justices, with cases heard by randomized panels of 9 justices. High-profile or particularly important cases could be reheard en banc by a larger panel or the entire court, similar to how it’s currently done in appeals courts.
Before you dismiss this as just another “court packing” scheme, let me explain why it’s fundamentally different from what FDR tried to do in 1937.
FDR’s plan was explicitly designed to shift the ideological balance of the court in his favor. He wanted to add up to six new justices precisely because the existing court kept striking down New Deal programs. The goal was partisan advantage, and everyone knew it. That’s why it failed—even FDR’s own party largely opposed it as a power grab.
What I’m proposing is the opposite. By expanding to at least 100 justices, you’re not packing the court in any ideological direction. You’re diluting the power of any individual justice—or any ideological bloc—to the point where it doesn’t matter nearly as much who gets appointed or when they retire or die. And unlike some reform proposals that would require a constitutional amendment, this one doesn’t. The Constitution doesn’t specify the size of the Supreme Court—Congress has changed it before, from as few as five justices to as many as ten.
Think about it this way: Right now, replacing one justice out of nine can shift the balance of the court from 5-4 one way to 5-4 the other way. That’s an enormous swing from a single personnel change. But if you have 100 justices, and cases are heard by randomized panels of 9, the ideological composition of any given panel becomes much more variable, and the overall composition of the court becomes much more stable over time.
No single president appointing one or two or even ten justices can fundamentally reshape the court. No single justice dying at an inopportune moment can throw constitutional law into chaos. The incentive for presidents to appoint ideological extremists diminishes because no individual justice will be important enough to matter that much.
This is the core principle: No single Supreme Court justice should ever be important enough to matter.
We shouldn’t care who any individual justice is. We shouldn’t have national freakouts when an 87-year-old justice refuses to retire. We shouldn’t have presidents salivating over the actuarial tables of aging justices. The system should be robust enough to absorb personnel changes without lurching wildly in one direction or another.
How would this work in practice? There are several possibilities.
One approach would be to elevate existing appeals court judges to the Supreme Court. This could happen all at once or gradually over time. Given that there are currently around 180 active appeals court judges, drawing from this pool wouldn’t be difficult from a numbers perspective.
Another approach would be a rotating system where appeals court judges serve temporary terms on the Supreme Court. This would actually align with how many other countries structure their highest courts and would create a more fluid relationship between the appellate and Supreme Court levels.
Either approach could be combined with term limits—say, 18 years—for Supreme Court justices. Term limits address a different but related problem: the arbitrary power that comes from lifetime appointments combined with advances in life expectancy. When the Constitution was written, justices served an average of about 15 years. Now they routinely serve 25, 30, or more. Term limits would make appointments more predictable and reduce the incentive for presidents to appoint the youngest possible ideologues who might serve for four decades.
There are additional benefits to this approach beyond diluting individual power.
First, the Supreme Court could actually hear more cases. The court has been steadily shrinking its docket for decades, from around 150 cases per year in the 1980s to around 60-70 today. With multiple panels operating simultaneously, the court could address far more legal questions, reducing the enormous backlog of important issues that never get resolved.
Second, it could help rationalize the federal circuit system. The Ninth Circuit, for example, is a behemoth that covers nine states plus Guam and the Northern Mariana Islands, with more than twice as many judges as the smallest circuits. With a reorganized Supreme Court drawing from an expanded pool of appellate judges, there would be an opportunity to realign the circuits into more sensible and equally-sized units.
Third, randomized panels would undermine the strategic timing that currently shapes which cases reach the court and when. Right now, advocacy groups wait for favorable court compositions before pushing major cases. The Dobbs decision that overturned Roe v. Wade didn’t happen by accident in 2022—anti-abortion activists had been deliberately holding back their most aggressive challenges for years, waiting until they knew they had a 6-3 anti-abortion majority locked in. With randomized panels drawn from 100 justices, that kind of strategic patience becomes pointless. You can’t game a court composition you can’t predict.
Now, there are legitimate questions and criticisms of this approach.
Some will argue that a 100-justice court would produce inconsistent rulings—different panels reaching different conclusions on similar issues. This is a real concern, but it’s manageable. En banc review could resolve circuit splits and ensure consistency on the most important questions. And frankly, we already have inconsistency—different circuit courts regularly reach contradictory conclusions that take years to resolve. Also the Supreme Court’s composition continually changes over time, and we still accept the results from different panels. No one sees a problem with relying on cases from half a century ago even though none of the Justices who made those rulings is even alive, let alone on the court, any more.
The most serious objection is political: any expansion would be seen as partisan court packing regardless of intent. This is true. Republicans would scream bloody murder if Democrats expanded the court by 91 justices, no matter how the new seats were filled. But Republicans are already screaming bloody murder about the courts whenever they don’t get their way. The question isn’t whether a reform will be controversial. The question is whether it will actually fix the problem.
The status quo isn’t neutral. A system where individual justices wield enormous power is a system that advantages whoever is best at the long game of judicial appointments. For the past several decades, that’s been Republicans.
Refusing to change a broken system because change might be controversial is just accepting permanent disadvantage while pretending to take the high road. Indeed, for anyone who (falsely) claims that this plan is “packing the court” (a la FDR), it’s the opposite. The Republicans and the Federalist Society spent decades plotting out things to get us where we are today, with a court that is “packed” in favor of their interests.
This is about unpacking the court.
The data from the Times analysis should alarm everyone who cares about an independent judiciary. When 92 percent of a president’s judicial appointees vote in his favor, that’s not impartial justice. That’s a rubber stamp. And when that pattern intensifies the higher you go in the judicial system, culminating in an 88% success rate at the Supreme Court, you have a system that’s been captured.
The solution isn’t to try to capture it for the other side. The solution is to build a system that’s resistant to capture in the first place.
Make the Supreme Court so large that no president can pack it. Make individual justices so interchangeable that none of them become celebrities or villains. Make the system boring. Make it work.
Because right now, we have a Supreme Court where everyone knows exactly who the swing vote is, where entire advocacy organizations are built around influencing specific justices, where presidential elections are decided partly on who might die in the next four years.
That’s not how a functional judicial system in a modern democracy should work. It’s time to unpack the court.
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Anonymous Cowardsays:
“I’m not getting my way so let’s pack the court” is not a new idea. It is in fact a favorite of leftist authoritarians, such as FDR, and his threatening to do is really the only reason The New Deal was ever deemed constitutional.
You don’t understand the law very well and when you don’t get your desired result you are willing to break all the rules to get your way.
You’re the baddies.
Anonymous Cowardsays:
Re:
It’s hilarious how you always out yourself as having reads only the title of articles, and never the actual article. It’s a common occurrence with one particular troll here, who I assume you are.
You post a comment where you make some assertion that is already countered in the article, as if it wasn’t.
It proves you’re not commenting here in good faith, but solely as a troll.
Anonymous Cowardsays:
The problem with that idea: if this idea came to fruition, do you really not think the democrats & Republicans will want to break the rules?
5-4 would become 51-49, and Republicans would abuse this idea worse.
Anonymous Cowardsays:
A friendly amendment
The idea of diluting the power of any one justice is fantastic. But as long as we’re going for 100, we should make them as representative as we can of the population of the US. There’s no need to repeat the mistake of the US Senate, where a state with two orders of magnitude fewer residents than the most populous state still has two senators. (I’ll give the founding fathers a mulligan on this, because it would have been difficult to imagine such a situation 250 years ago.)
I’ll argue that (1) any current Supreme Court justice past their 18-year tenure must be removed now. That’s Roberts, Thomas, and Alito, so that makes for 94 openings.
Those openings should be filled by appointments by the governors of all 50 states plus the mayor DC plus the governor of Puerto Rico etc., said appointments to be allocate proportionate to population. E.g. California has about 39M people, the US population is about 348M, they get to appoint 11.2% of the slots or about 10.5 people. Wyoming has about .5M people, they get to appoint about .15% of the slots. Yeah, that’s not much, but it shouldn’t be much: the citizens of Wyoming should not have an outsized effect on the judicial system.
We could debate the methodology/numbers, but I think proportional representation is a good thing. What I’m not sure about is the confirmation process: it certainly can’t be trusted to the Senate, because they’ll turn down anyone who isn’t one of Trump’s obedient fascist thugs — and thus they’d block all nominees from California while dutifully approving those from Texas. There definitely needs to be some kind of check/balance on the power of governors, but I don’t think the Senate is it.
Anonymous Cowardsays:
Re:
No mulligan from me, they did it for slavery. For which they also receive no mulligan.
I respectfully disagree. I don’t think it really addresses the problem and you’re getting at two different things (the quality of rulings in general and the current state of the court as a Trump doormat). Yes, the Supreme Court very much appears to have been captured, but by whom? Trump only personally nominated three of the justices. The other three conservatives were there before he ever ran for office. If his nomination powers are too strong, how would a 100-man SCOTUS fix the problem? Judges skew kinda old. A pool of 100 judges would probably have at least 5 dying every year, maybe as many as 10 or more though. It would turn the Senate into a 24/7 confirmation machine. If the Senate were to pass on this confirmation power it would just become a rubber stamp. Trump got extremely lucky (in many ways). If we assume he got similarly lucky under the new rules, this problem would still be here because he packed the 100-man SCOTUS with 30ish new appointees and would still have an inexplicable grip on the judiciary via all 21 or whatever other Reagan/Bush/Bush Jr appointments still ambling along.
As for quality of rulings, I don’t see how 100 people are going to make better rulings than 9. Does our congress make better laws because it has so many people in it? I think the general purpose of the supreme court is to create consistent law (as opposed to “good” law) and for that purpose a small number of justices who don’t rotate frequently is fantastic.
Of course, if the problem with SCOTUS is that all the judges have been corrupted then yes, trivially, it is harder to corrupt 51 judges than 5, but it’s certainly not any less difficult to corrupt 51 judges than it is, say, 51 senators.
Whatever magic pixie dust Trump is using to mind control the right, I think it would work just as well however you rearrange the seats at the table.
Anonymous Cowardsays:
Re:
All federal judgeships are already appointed by the President and confirmed by the Senate, so it would not change the confirmation process one bit.
It can’t eliminate corruption altogether, but work toward a less corruptible system is always good.
I would definitely like to see term limits as well. I’ve heard the 18 year proposal and I think that is a reasonable limit. There are other suggested limitations on the court’s power as well, such as limiting the current court structure to cases where the Constitution gives Original Jurisdiction.
Anonymous Cowardsays:
Re: Re:
Another approach would be to put the judges up for a retention vote. That keeps the nomination and confirmation procedures while giving the public the ability to boot any judge. The president gets another shot at a nomination to get confirmed.
Anonymous Cowardsays:
Re: Re: Re:
giving the public the ability to boot any judge.
The public don’t understand how this court is supposed to work, and even on Techdirt you’ll see this. People will disagree with a ruling because they don’t like the result. But the Supreme Court only has to decide whether the result complies with the text of the law, and whether the text and process are compatible with the Constitution. They are not supposed to decide whether the law is good or gives a desirable result—that’s the job of the legislative branch—and are supposed to leave their own political leanings out of it (obviously, they could sometimes do better).
There are good reasons the justices cannot be fired. In my view, the confirmation process is where most of the trouble lies, and it’s because the would-be confirmers have the same problem I mentioned above. They don’t judge the judge on their actual job, but on whether the results match some desired ones, based on political beliefs.
I’ll openly admit I did no work to come up with that number, but because facts are worth a lot more than opinions let’s do some digging shall we?
According to this article from Harvard law school the average age of a federal judge is 69 years old. According to SSA actuarial tables, a typical 69 year old man is expected to live 14.76 more years while a 69 year old woman is expected to live 17.03 additional years. You can probably assume that federal judges, being reasonably wealthy people who can afford very nice healthcare, may live a little bit longer than the SSA average but it’s a very safe bet that more than 1 in 20 federal judges is probably going to die or retire in any given year. In the United State’s roughly 250 year history, there have been 121 SCOTUS appointments or roughly one every 0.48 years. The size of the court has varied from 6 to 9 justices until just after the Civil War. If we negate all the justices appointed by everyone before Grant (40), then that means 81 justices have been appointed to the 9-member court in 157 years, which is actually a 51% chance of judge replacement per year. Divided by 9 and times 100 gives us 5.73 judges per year, on average.
That is, of course, assuming a constant rate of death or retirement. Real life is not so neat and tidy so you can expect that in the natural course of human events, some years will have relatively few vacancies while some years have more than average. The average presidential term of four years would be replacing nearly 23 judges. It’s not inconceivable that an exceptionally lucky president might end up replacing 35 or more.
Your numbers are off (you’re double-counting associate justices who were promoted to chief justice, and you’re counting Joseph P. Bradley as a replacement instead of a new seat) but more significantly you’re assuming vacancies have opened at a consistent rate from 1869 to present, which simply isn’t the case. Breaking it down by presidential term:
* Senate Republicans stole an appointment from Obama and gave it to Trump
It’s quite plain, looking at those numbers, that turnover is lower now than it was in the 19th and most of the 20th century and including those earlier results in your calculations biases them. There has not been a single presidential term with 4 (or more) replacements since Nixon’s first term, while in the same timeframe there have been 3 terms with no vacancies (two of them consecutive!), four if you include Obama’s second term. From Grant to Nixon (100 years) there were only 2 terms with no vacancies.
If we were to split this 156-year period into 3 52-year periods:
The turnover rate has dropped by (almost exactly) half in the last 52 years compared to the 104 years prior. If you want to choose a different set of cutoffs feel free to do so, but regardless of where you draw the line I think it’s pretty clear that Supreme Court vacancy rate has greatly decreased in recent years compared to the full dataset you’ve chosen to judge it by. It is not at all reasonable to extrapolate that there would “probably be at least” a 5% turnover every year for a 100-seat SCOTUS based on recent data, let alone that a 10% or higher turnover in a single year (roughly the equivalent of 4-5 vacancies in a 4-year term with a 9-seat court, something that hasn’t happened in over 50 years) would be a likely occurrence.
It’s true that outliers would occur, but the more justices are on the court the harder it is for an outlier year to shift the balance of the court.
That’s some solid math, I can respect that. But why draw a random line in 1977? Seems rather arbitrary. There’s variance in any given sample, and the fact that the 52 year period from 1921-1976 had 33 replacements, over twice as many, says that the variance can be quite severe.
Like I said, draw the lines where you want. I chose thirds because that splits 156 up into 3 equal periods that each begin and end on a full 4-year term.
a 10% or higher turnover in a single year (roughly the equivalent of 4-5 vacancies in a 4-year term with a 9-seat court, something that hasn’t happened in over 50 years)
On reread those numbers are pretty unclear.
What I mean to say is that 10 people out of 100 dying or retiring in a year isn’t really the equivalent of 1 person out of 9 dying or retiring, simply because drawing predictions based on proportion breaks down with smaller numbers. A single person dying or retiring unexpectedly is likelier than ten people doing it, regardless of the size of the pool you’re drawing from.
I meant that 1 person dying or retiring, every year, for 4 years, is more analogous simply because (1) 4-5 people out of 9 are less likely to resign in 4 years than 1 in a given year but (2) they average out to about the same number per year.
Hopefully that’s coherent. Basically for a smaller dataset any given outlier is going to be a bigger outlier than an outlier from a larger dataset. 10 people out of 100 (or 11, if you like) retiring or dying in a single year is less probable than 1 person out of 9, because we’re dealing with integers and one dataset is much larger than the other. There are proportions between 0 and 11 vacancies out of 100; there are no proportions between 0 and 1 out of 9.
Anonymous Cowardsays:
This is all likely moot, since the Dems are sitting around with their thumbs up their asses while ICE is built up into a praetorian guard. Trump clearly intends to go Full Putin wrt the midterms and I have absolutely no confidence that any of the invertebrates in congress will act against him.
Anonsays:
Good Though
It’s not a bad idea. I would go more modest. 18 judges, 9 year terms so 2 new judges a year, any case heard by a random draw of those judges. Random to be a draw from a vase in front of reporters. I like the idea of selections for justices to be from circuit court judges who have not had a turn but have been in their position for at least 5 years. this makes it harder for the president to pick one’s own favourites, until well into the second term. A random panel (by draw) of 3 judges each month to decide which cases to hear. A case can be in front of the court for up to 12 months, so 12 chances to be chosen by a different panel each time.
or do like the appeals courts, a 3-judge random panel to hear a case, with the option to appeal to the full court (or a larger panel) if the court agrees.
Anonymous Cowardsays:
Re:
any case heard by a random draw of those judges. Random to be a draw from a vase in front of reporters.
Why not add some randomness during nomination, too? Some people have seriously suggested just picking an American at random, and making that person President. You might get an idiot (see also: actual elections), but you probably won’t get one who’s also a power-seeking asshole.
Similarly, we could ask each lawmaker to name several different judges, and then randomly pick from the names that got at least a certain number of votes. Or we could just randomly pick from the pool of “circuit court judges who have not had a turn but have been in their position for at least 5 years”.
This idea certainly has merit, and is worthy of continued study. Of course, any system can be gamed, but this change might make this particular system much harder to game. This idea reminded me of another problematic aspect of our political system: its two-party nature. I think this problem has a very direct impact on the SCOTUS problem.
Some version of a two-party system has existed in the US since shortly after the inception of the country. People who study such things say this situation is the inevitable result of our system of voting, where the winning candidate in each State takes all of that State’s electoral votes. Evidence to support this theory may be found in other countries that have different voting systems, and also have several strong political parties with much greater diversity than our own two.
The fact that our two parties have largely become mostly indistinguishable on the fundamental principles (larger, more authoritarian and more intrusive government, and less individual liberty), and spend a great deal of their time trying to differentiate themselves on relatively slight differences of degree on just a few hot-button issues (drugs, guns, abortion, and immigration), may also be an indication that the two-party system that has developed is fundamentally flawed. In a system with more strong political parties it would likely be more difficult for all of them to jointly head in the wrong direction. A change in the voting / electoral system could lead to the rise of more strong political parties.
So, in addition to a significantly larger SCOTUS, where each individual judge would matter less, and each President’s appointments would have less effect, maybe a change in the electoral system to get more than just two points of view in the mix would help, too.
People who study such things say this situation is the inevitable result of our system of voting, where the winning candidate in each State takes all of that State’s electoral votes.
What? No. No, that’s not why we have a two-party system; if it were, we’d have more than two parties for offices that aren’t elected by the electoral college system.
You’re talking about Duverger’s law, which “holds that in political systems with single-member districts and the first-past-the-post voting system, as in, for example, the United States and United Kingdom, only two powerful political parties tend to control power.” I don’t like the electoral college or the all-or-nothing apportionment of states’ electoral votes either, but that’s not the cause of the two-party system.
our two parties have largely become mostly indistinguishable on the fundamental principles
Oh, fuck right off.
And that’s coming from someone who actually agrees with you that the two-party system is a serious problem, the Democrats are too conservative, and we need to reform our electoral system to allow viable third parties.
But if you find the Democrats and the Republicans to be “mostly indistinguishable”, now, in twenty fucking twenty-six, that’s a you problem.
Harris is certainly more cozy with law enforcement than I’d like, but no, I’m pretty goddamn sure if she were president there wouldn’t be masked goons shooting people in the face in Minneapolis right now. Come the fuck on.
Anonymous Cowardsays:
Many states have provisions to retain judges using ballots. We need federal mechanisms to put seated justices on ballots to remain on the bench. If the 80 year old judge refuses to go voluntarily, the public can force the issue.
This comment has been deemed insightful by the community.
'Any outcome that isn't in our favor is rigged/hacked/fraudulent!'
At this point even if the goal was to tilt the supreme court so it was stacked with dems I’d probably be down for it as it would simply be responding to the republican court stacking with a taste of their own medicine. If you don’t like cheating then don’t make it clear that you consider it an acceptable move.
I’m not sure if a full 100 justices would be needed but expanding out the court significantly so that no one justice can be a vital linchpin to legal strategies of those looking to use the system for their own gain would certainly be an improvement over the system currently in place, low bar that is. The biggest problem I an see is selection as without a way to keep one party or another from either completely filling the court with their own people or vetoing the other side’s nominations you’d likely just end up with a larger version of what’s currently in place.
Republicans would scream bloody murder if Democrats expanded the court by 91 justices, no matter how the new seats were filled. But Republicans are already screaming bloody murder about the courts whenever they don’t get their way.
This really cannot be emphasized enough: Republicans will always cry foul on any outcome that isn’t 100% in their favor, so there’s no point in trying to ‘be fair’ and come up with something that the republicans won’t accuse of being rigged against them because they’ll do that for anything that isn’t completely in their favor.
Republican claims of bias or ‘persecution’ should long have reached the ‘boy who cried wolf’ stage where any such claims are dismissed outright as made in bad faith until proven otherwise given how many times bad faith claims have been made in an attempt to game the system for them.
izasays:
Re:
Can someone in the US please explain why the Republicans are still considered a real political party? Do they actually govern? What issues do they address, that aren’t manufactured?
Re: Re: 'Yeah I cut off my nose but now they have to see it every day!'
Because the US has a lot of very stupid and spiteful people who are perfectly happy to suffer so long as they believe someone they hate has it worse, and the republican party is very good at pandering to that demographic.
“If you can convince the lowest white man he’s better than the best colored man, he won’t notice you’re picking his pocket. Hell, give him somebody to look down on, and he’ll empty his pockets for you.” — Lyndon B. Johnson
You (We, Us)says:
When Supreme Court agrees with me = good, cite cases
When Supreme Court disagrees with me = bad, corrupt, needs change
The problem with the current Supreme Court isn’t “disagreeing” with their rulings along partisan political lines. Everyone does that shit. The problem lies in how the current Supreme Court will ignore precedents made by prior SCOTUS rulings so the six conservatives on the court can rule, more often than not, along partisan political lines. I mean, do you really think the ruling that struck down Roe v. Wade fully respected prior precedent (including Roe v. Wade itself) and was decided wholly on the secular merits of the case?
Also, here’s a fun little question I’d love to see you answer. Let’s assume, arguendo, that conservatives/Republicans manage to keep control of Congress, the White House, and the Supreme Court for the next fifteen years, such that sixteen years will have passed under the reign of conservatism. If conservatives get everything they want in the next fifteen years, how will day-to-day life look different come the 20th of January 2041? Or to put it more bluntly: What is conservatism working towards?
Benchamin Franklinsays:
Here’s my solution. A judge passes away (may they rest in peace), is impeached or resigns/retires, opening up a seat. The 3 branches of government, the Executive, Legislative and Judicial each provide a replacement.
The president picks one as per usual, the House Minority Speaker picks one to maintain a partisan balance and the remaining Justices also choose one. The Senate confirms as per usual, all three of them.
That would mean court stuffing could still be possible (if not expected), as the Judicial and Executive choices would potentially be aligned. It would also leave us with 11 justices, still an odd number so no even split votes, which is good, but the risk of partisan judiciary capture is still high.
This is where the other part of the country can join in: the people. Every odd-numbered year, along with the usual local elections, the sitting judges and the newly chosen candidates are all put on a ranked-choice ballot. The top 9 out of the 11 remain in the Supreme Court.
This should keep the court more aligned with the will of the people, keep the court rotated with fresh stock and prevent dust from building up on hairless pates while still allowing the politicians to practice their usual political chicanery.
Having the judiciary ballot in odd-numbered years will also keep elections in the minds of the people, hopefully helping people pay attention to the powers that be and the choices they make. Hopefully…
The ranked-choice ballot should also have a ‘no confidence’ ranking, in case the entire Supreme Court is somehow packed entirely with baffoons and sycophants. The people can say oh hell naw and reset the whole damn board. If any Justice gets more oh hell naw votes than it gets rankings, out they go.
Of course, this could lead to a situation where the entire court is booted by the people. The court suddenly grows to 27 as 3 replacements are picked for each spot as detailed above. 2 years later, it happenes again, the court becomes an unwieldy 81 member force and the bench is upgraded to bleachers. 15 years later, we have more judges than we have citizens. Everyone wears powdered wigs. Chaos has been unleashed. Pandora opens her box for all. America has finally become great again.
Petersays:
Here's my idea
Every two years the longest serving justice must retire. The first nominee of a president’s term is automatically seated. The nominee they get at the mid-terms goes through the traditional confirmation process.
Anonymous Cowardsays:
This remains as bad an idea as the first time you proposed it.
And unlike some reform proposals that would require a constitutional amendment, this one doesn’t.
Depends how it’s implemented, but it’s likely to require an amendment. For example…
a rotating system where appeals court judges serve temporary terms on the Supreme Court
term limits—say, 18 years—for Supreme Court justices.
These implementations would absolutely require an amendment. Supreme Court justices serve for life; that’s in the Constitution, and so is needing them to be appointed and confirmed as Supreme Court justices in particular.
One approach would be to elevate existing appeals court judges to the Supreme Court.
That could be done without an amendment, but the President would still have to appoint those people and the Senate would have to confirm them. Congress couldn’t just pass a law elevating them. Future Presidents and future Senates would also have to continue to do this, without nothing in the law or Constitution making them. Do you trust the 2032 Senate, in the year before the 2032 election, to confirm SCOTUS nominations of the opposing party’s President? Haven’t we already seen what can happen there?
First, the Supreme Court could actually hear more cases. The court has been steadily shrinking its docket for decades, from around 150 cases per year in the 1980s to around 60-70 today. With multiple panels operating simultaneously, the court could address far more legal questions, reducing the enormous backlog of important issues that never get resolved
They could hear more cases, but if some other panel could rule another way on a near-identical case tomorrow, is anything really “resolved”? Or do you want it where 5 justices can make a ruling binding on not just the lower courts but the other 95, unless and until it’s heard en banc?
Second… With a reorganized Supreme Court drawing from an expanded pool of appellate judges, there would be an opportunity to realign the circuits into more sensible and equally-sized units.
You could do that any time anyway. The main problem is how the law would suddenly change in a bunch of weird ways if you move a state from one circuit to another.
Third, randomized panels would undermine the strategic timing that currently shapes which cases reach the court and when
Not if you still have en banc for the cases perceived as important! I suppose it might undermine strategic timing for the cases not perceived as important, although then you’d have to expect it wouldn’t have reached the current SCOTUS in the first place, because as you say they don’t hear all that many cases. So I’m not sure what that even fixes.
Some will argue that a 100-justice court would produce inconsistent rulings—different panels reaching different conclusions on similar issues. This is a real concern, but it’s manageable. En banc review could resolve circuit splits and ensure consistency on the most important questions. And frankly, we already have inconsistency—different circuit courts regularly reach contradictory conclusions that take years to resolve.
Yes, I do make that argument. It’s often not as serious to have splits at the circuit court level because it’s at least consistent within that circuit. I might know what the law is in the 7th Circuit, but if it all depends on which random set of Supreme Court justices hears the case, I know nothing. And that’s a bad thing, to be clear.
You would also be giving a very large amount of power to whoever would be appointing all these people in the first few years. Adding just 1 seat per year would make this take nearly a hundred years to implement, and any proposal would certainly add seats faster than that – but even just adding 4 seats in a single 4-year presidential term plus whatever the normal turnover is, would give the President a rather extreme influence on the court makeup. Trump has appointed 3 of 9; imagine if it was 7 of 13. Not to mention that if you take them from existing appeals courts, the President would get to appoint all the replacement circuit court judges (even a 100 member Supreme Court wouldn’t be enough to hear all appeals, after all) and of course those replacement circuit court judges would then all be in line to be in the expanded SCOTUS in the future. And if you’re doing it all at once but waiting for a favorable President (you’re not seriously saying we should do this right now so Trump makes 91 appointments, right?) then don’t even try to pretend it’s not court-packing.
Plus having a potential en banc SCOTUS hear a case (plus many more cases heard by the mini-SCOTUS panels) adds another layer to the appeals process. Federal cases already take far, far too long, and this potentially makes things take even longer.
Anonymous Cowardsays:
Don't randomize it, but otherwise good
One hundred sounds like a decent idea, but I think it would be better for the whole court to hear them so that cases aren’t essentially subject to RNG. Then it will at least be more representative. Better to know it was a 62:38 split than potentially having probability hand a 10:0 ruling that the rest of the court would have rejected out of hand.
Hold on, everybody. Move your finger off the “hide this post” button!
I like this idea. I think the key is finding a way so that no President can appoint a bunch of new Justices all at once. Maybe every year the President can appoint two new justices until we reach the optimal number.
The number 100 may be too high. But something needs to be done.
Comments on “The Case For A 100-Justice Supreme Court”
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“I’m not getting my way so let’s pack the court” is not a new idea. It is in fact a favorite of leftist authoritarians, such as FDR, and his threatening to do is really the only reason The New Deal was ever deemed constitutional.
You don’t understand the law very well and when you don’t get your desired result you are willing to break all the rules to get your way.
You’re the baddies.
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It’s hilarious how you always out yourself as having reads only the title of articles, and never the actual article. It’s a common occurrence with one particular troll here, who I assume you are.
You post a comment where you make some assertion that is already countered in the article, as if it wasn’t.
It proves you’re not commenting here in good faith, but solely as a troll.
The problem with that idea: if this idea came to fruition, do you really not think the democrats & Republicans will want to break the rules?
5-4 would become 51-49, and Republicans would abuse this idea worse.
A friendly amendment
The idea of diluting the power of any one justice is fantastic. But as long as we’re going for 100, we should make them as representative as we can of the population of the US. There’s no need to repeat the mistake of the US Senate, where a state with two orders of magnitude fewer residents than the most populous state still has two senators. (I’ll give the founding fathers a mulligan on this, because it would have been difficult to imagine such a situation 250 years ago.)
I’ll argue that (1) any current Supreme Court justice past their 18-year tenure must be removed now. That’s Roberts, Thomas, and Alito, so that makes for 94 openings.
Those openings should be filled by appointments by the governors of all 50 states plus the mayor DC plus the governor of Puerto Rico etc., said appointments to be allocate proportionate to population. E.g. California has about 39M people, the US population is about 348M, they get to appoint 11.2% of the slots or about 10.5 people. Wyoming has about .5M people, they get to appoint about .15% of the slots. Yeah, that’s not much, but it shouldn’t be much: the citizens of Wyoming should not have an outsized effect on the judicial system.
We could debate the methodology/numbers, but I think proportional representation is a good thing. What I’m not sure about is the confirmation process: it certainly can’t be trusted to the Senate, because they’ll turn down anyone who isn’t one of Trump’s obedient fascist thugs — and thus they’d block all nominees from California while dutifully approving those from Texas. There definitely needs to be some kind of check/balance on the power of governors, but I don’t think the Senate is it.
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No mulligan from me, they did it for slavery. For which they also receive no mulligan.
I respectfully disagree. I don’t think it really addresses the problem and you’re getting at two different things (the quality of rulings in general and the current state of the court as a Trump doormat). Yes, the Supreme Court very much appears to have been captured, but by whom? Trump only personally nominated three of the justices. The other three conservatives were there before he ever ran for office. If his nomination powers are too strong, how would a 100-man SCOTUS fix the problem? Judges skew kinda old. A pool of 100 judges would probably have at least 5 dying every year, maybe as many as 10 or more though. It would turn the Senate into a 24/7 confirmation machine. If the Senate were to pass on this confirmation power it would just become a rubber stamp. Trump got extremely lucky (in many ways). If we assume he got similarly lucky under the new rules, this problem would still be here because he packed the 100-man SCOTUS with 30ish new appointees and would still have an inexplicable grip on the judiciary via all 21 or whatever other Reagan/Bush/Bush Jr appointments still ambling along.
As for quality of rulings, I don’t see how 100 people are going to make better rulings than 9. Does our congress make better laws because it has so many people in it? I think the general purpose of the supreme court is to create consistent law (as opposed to “good” law) and for that purpose a small number of justices who don’t rotate frequently is fantastic.
Of course, if the problem with SCOTUS is that all the judges have been corrupted then yes, trivially, it is harder to corrupt 51 judges than 5, but it’s certainly not any less difficult to corrupt 51 judges than it is, say, 51 senators.
Whatever magic pixie dust Trump is using to mind control the right, I think it would work just as well however you rearrange the seats at the table.
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All federal judgeships are already appointed by the President and confirmed by the Senate, so it would not change the confirmation process one bit.
It can’t eliminate corruption altogether, but work toward a less corruptible system is always good.
I would definitely like to see term limits as well. I’ve heard the 18 year proposal and I think that is a reasonable limit. There are other suggested limitations on the court’s power as well, such as limiting the current court structure to cases where the Constitution gives Original Jurisdiction.
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Another approach would be to put the judges up for a retention vote. That keeps the nomination and confirmation procedures while giving the public the ability to boot any judge. The president gets another shot at a nomination to get confirmed.
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The public don’t understand how this court is supposed to work, and even on Techdirt you’ll see this. People will disagree with a ruling because they don’t like the result. But the Supreme Court only has to decide whether the result complies with the text of the law, and whether the text and process are compatible with the Constitution. They are not supposed to decide whether the law is good or gives a desirable result—that’s the job of the legislative branch—and are supposed to leave their own political leanings out of it (obviously, they could sometimes do better).
There are good reasons the justices cannot be fired. In my view, the confirmation process is where most of the trouble lies, and it’s because the would-be confirmers have the same problem I mentioned above. They don’t judge the judge on their actual job, but on whether the results match some desired ones, based on political beliefs.
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That’s a hell of an assertion. You mind showing your work on that?
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I’ll openly admit I did no work to come up with that number, but because facts are worth a lot more than opinions let’s do some digging shall we?
According to this article from Harvard law school the average age of a federal judge is 69 years old. According to SSA actuarial tables, a typical 69 year old man is expected to live 14.76 more years while a 69 year old woman is expected to live 17.03 additional years. You can probably assume that federal judges, being reasonably wealthy people who can afford very nice healthcare, may live a little bit longer than the SSA average but it’s a very safe bet that more than 1 in 20 federal judges is probably going to die or retire in any given year. In the United State’s roughly 250 year history, there have been 121 SCOTUS appointments or roughly one every 0.48 years. The size of the court has varied from 6 to 9 justices until just after the Civil War. If we negate all the justices appointed by everyone before Grant (40), then that means 81 justices have been appointed to the 9-member court in 157 years, which is actually a 51% chance of judge replacement per year. Divided by 9 and times 100 gives us 5.73 judges per year, on average.
That is, of course, assuming a constant rate of death or retirement. Real life is not so neat and tidy so you can expect that in the natural course of human events, some years will have relatively few vacancies while some years have more than average. The average presidential term of four years would be replacing nearly 23 judges. It’s not inconceivable that an exceptionally lucky president might end up replacing 35 or more.
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Your numbers are off (you’re double-counting associate justices who were promoted to chief justice, and you’re counting Joseph P. Bradley as a replacement instead of a new seat) but more significantly you’re assuming vacancies have opened at a consistent rate from 1869 to present, which simply isn’t the case. Breaking it down by presidential term:
1869-1872 (Grant): 1 replacement (plus 1 new seat)
1873-1876 (Grant): 2 replacements
1877-1880 (Hayes): 2
1881-1884 (Garfield/Arthur): 3
1885-1888 (Cleveland): 2
1889-1892 (Harrison): 4
1893-1896 (Cleveland): 2
1897-1900 (McKinley): 1
1901-1904 (T Roosevelt): 2
1905-1908 (T Roosevelt): 1
1909-1912 (Taft): 5 (plus 1 AJ promoted to CJ)
1913-1916 (Wilson): 3
1917-1920 (Wilson): 0
1921-1924 (Harding): 4
1925-1928 (Coolidge): 1
1929-1932 (Hoover): 2 (plus 1 AJ to CJ)
1933-1936 (FDR): 0
1937-1940 (FDR): 5
1941-1944 (FDR): 3 (plus 1 AJ to CJ)
1945-1948 (FDR/Truman): 2
1949-1952 (Truman): 2
1953-1956 (Eisenhower): 3
1957-1960 (Eisenhower): 2
1961-1964 (JFK/LBJ): 2
1965-1968 (LBJ): 2
1969-1972 (Nixon): 4
1973-1976 (Nixon/Ford): 1
1976-1980 (Carter): 0
1981-1984 (Reagan): 1
1985-1988 (Reagan): 2 (plus 1 AJ to CJ)
1989-1992 (GHW Bush): 2
1993-1996 (Clinton): 2
1997-2000 (Clinton): 0
2001-2004 (GW Bush): 0
2005-2008 (GW Bush): 2
2009-2012 (Obama): 2
2013-2016 (Obama): 0*
2017-2020 (Trump): 3*
2021-2024 (Biden): 1
* Senate Republicans stole an appointment from Obama and gave it to Trump
It’s quite plain, looking at those numbers, that turnover is lower now than it was in the 19th and most of the 20th century and including those earlier results in your calculations biases them. There has not been a single presidential term with 4 (or more) replacements since Nixon’s first term, while in the same timeframe there have been 3 terms with no vacancies (two of them consecutive!), four if you include Obama’s second term. From Grant to Nixon (100 years) there were only 2 terms with no vacancies.
If we were to split this 156-year period into 3 52-year periods:
1869-1920: 28 replacements
1921-1976: 33
1977-2024: 15
The turnover rate has dropped by (almost exactly) half in the last 52 years compared to the 104 years prior. If you want to choose a different set of cutoffs feel free to do so, but regardless of where you draw the line I think it’s pretty clear that Supreme Court vacancy rate has greatly decreased in recent years compared to the full dataset you’ve chosen to judge it by. It is not at all reasonable to extrapolate that there would “probably be at least” a 5% turnover every year for a 100-seat SCOTUS based on recent data, let alone that a 10% or higher turnover in a single year (roughly the equivalent of 4-5 vacancies in a 4-year term with a 9-seat court, something that hasn’t happened in over 50 years) would be a likely occurrence.
It’s true that outliers would occur, but the more justices are on the court the harder it is for an outlier year to shift the balance of the court.
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That’s some solid math, I can respect that. But why draw a random line in 1977? Seems rather arbitrary. There’s variance in any given sample, and the fact that the 52 year period from 1921-1976 had 33 replacements, over twice as many, says that the variance can be quite severe.
Re: Re: Re:3
Like I said, draw the lines where you want. I chose thirds because that splits 156 up into 3 equal periods that each begin and end on a full 4-year term.
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On reread those numbers are pretty unclear.
What I mean to say is that 10 people out of 100 dying or retiring in a year isn’t really the equivalent of 1 person out of 9 dying or retiring, simply because drawing predictions based on proportion breaks down with smaller numbers. A single person dying or retiring unexpectedly is likelier than ten people doing it, regardless of the size of the pool you’re drawing from.
I meant that 1 person dying or retiring, every year, for 4 years, is more analogous simply because (1) 4-5 people out of 9 are less likely to resign in 4 years than 1 in a given year but (2) they average out to about the same number per year.
Hopefully that’s coherent. Basically for a smaller dataset any given outlier is going to be a bigger outlier than an outlier from a larger dataset. 10 people out of 100 (or 11, if you like) retiring or dying in a single year is less probable than 1 person out of 9, because we’re dealing with integers and one dataset is much larger than the other. There are proportions between 0 and 11 vacancies out of 100; there are no proportions between 0 and 1 out of 9.
This is all likely moot, since the Dems are sitting around with their thumbs up their asses while ICE is built up into a praetorian guard. Trump clearly intends to go Full Putin wrt the midterms and I have absolutely no confidence that any of the invertebrates in congress will act against him.
Good Though
It’s not a bad idea. I would go more modest. 18 judges, 9 year terms so 2 new judges a year, any case heard by a random draw of those judges. Random to be a draw from a vase in front of reporters. I like the idea of selections for justices to be from circuit court judges who have not had a turn but have been in their position for at least 5 years. this makes it harder for the president to pick one’s own favourites, until well into the second term. A random panel (by draw) of 3 judges each month to decide which cases to hear. A case can be in front of the court for up to 12 months, so 12 chances to be chosen by a different panel each time.
or do like the appeals courts, a 3-judge random panel to hear a case, with the option to appeal to the full court (or a larger panel) if the court agrees.
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Why not add some randomness during nomination, too? Some people have seriously suggested just picking an American at random, and making that person President. You might get an idiot (see also: actual elections), but you probably won’t get one who’s also a power-seeking asshole.
Similarly, we could ask each lawmaker to name several different judges, and then randomly pick from the names that got at least a certain number of votes. Or we could just randomly pick from the pool of “circuit court judges who have not had a turn but have been in their position for at least 5 years”.
Another approach
This idea certainly has merit, and is worthy of continued study. Of course, any system can be gamed, but this change might make this particular system much harder to game. This idea reminded me of another problematic aspect of our political system: its two-party nature. I think this problem has a very direct impact on the SCOTUS problem.
Some version of a two-party system has existed in the US since shortly after the inception of the country. People who study such things say this situation is the inevitable result of our system of voting, where the winning candidate in each State takes all of that State’s electoral votes. Evidence to support this theory may be found in other countries that have different voting systems, and also have several strong political parties with much greater diversity than our own two.
The fact that our two parties have largely become mostly indistinguishable on the fundamental principles (larger, more authoritarian and more intrusive government, and less individual liberty), and spend a great deal of their time trying to differentiate themselves on relatively slight differences of degree on just a few hot-button issues (drugs, guns, abortion, and immigration), may also be an indication that the two-party system that has developed is fundamentally flawed. In a system with more strong political parties it would likely be more difficult for all of them to jointly head in the wrong direction. A change in the voting / electoral system could lead to the rise of more strong political parties.
So, in addition to a significantly larger SCOTUS, where each individual judge would matter less, and each President’s appointments would have less effect, maybe a change in the electoral system to get more than just two points of view in the mix would help, too.
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What? No. No, that’s not why we have a two-party system; if it were, we’d have more than two parties for offices that aren’t elected by the electoral college system.
You’re talking about Duverger’s law, which “holds that in political systems with single-member districts and the first-past-the-post voting system, as in, for example, the United States and United Kingdom, only two powerful political parties tend to control power.” I don’t like the electoral college or the all-or-nothing apportionment of states’ electoral votes either, but that’s not the cause of the two-party system.
Oh, fuck right off.
And that’s coming from someone who actually agrees with you that the two-party system is a serious problem, the Democrats are too conservative, and we need to reform our electoral system to allow viable third parties.
But if you find the Democrats and the Republicans to be “mostly indistinguishable”, now, in twenty fucking twenty-six, that’s a you problem.
Harris is certainly more cozy with law enforcement than I’d like, but no, I’m pretty goddamn sure if she were president there wouldn’t be masked goons shooting people in the face in Minneapolis right now. Come the fuck on.
Many states have provisions to retain judges using ballots. We need federal mechanisms to put seated justices on ballots to remain on the bench. If the 80 year old judge refuses to go voluntarily, the public can force the issue.
'Any outcome that isn't in our favor is rigged/hacked/fraudulent!'
At this point even if the goal was to tilt the supreme court so it was stacked with dems I’d probably be down for it as it would simply be responding to the republican court stacking with a taste of their own medicine. If you don’t like cheating then don’t make it clear that you consider it an acceptable move.
I’m not sure if a full 100 justices would be needed but expanding out the court significantly so that no one justice can be a vital linchpin to legal strategies of those looking to use the system for their own gain would certainly be an improvement over the system currently in place, low bar that is. The biggest problem I an see is selection as without a way to keep one party or another from either completely filling the court with their own people or vetoing the other side’s nominations you’d likely just end up with a larger version of what’s currently in place.
Republicans would scream bloody murder if Democrats expanded the court by 91 justices, no matter how the new seats were filled. But Republicans are already screaming bloody murder about the courts whenever they don’t get their way.
This really cannot be emphasized enough: Republicans will always cry foul on any outcome that isn’t 100% in their favor, so there’s no point in trying to ‘be fair’ and come up with something that the republicans won’t accuse of being rigged against them because they’ll do that for anything that isn’t completely in their favor.
Republican claims of bias or ‘persecution’ should long have reached the ‘boy who cried wolf’ stage where any such claims are dismissed outright as made in bad faith until proven otherwise given how many times bad faith claims have been made in an attempt to game the system for them.
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Can someone in the US please explain why the Republicans are still considered a real political party? Do they actually govern? What issues do they address, that aren’t manufactured?
Re: Re: 'Yeah I cut off my nose but now they have to see it every day!'
Because the US has a lot of very stupid and spiteful people who are perfectly happy to suffer so long as they believe someone they hate has it worse, and the republican party is very good at pandering to that demographic.
“If you can convince the lowest white man he’s better than the best colored man, he won’t notice you’re picking his pocket. Hell, give him somebody to look down on, and he’ll empty his pockets for you.” — Lyndon B. Johnson
When Supreme Court agrees with me = good, cite cases
When Supreme Court disagrees with me = bad, corrupt, needs change
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The problem with the current Supreme Court isn’t “disagreeing” with their rulings along partisan political lines. Everyone does that shit. The problem lies in how the current Supreme Court will ignore precedents made by prior SCOTUS rulings so the six conservatives on the court can rule, more often than not, along partisan political lines. I mean, do you really think the ruling that struck down Roe v. Wade fully respected prior precedent (including Roe v. Wade itself) and was decided wholly on the secular merits of the case?
Also, here’s a fun little question I’d love to see you answer. Let’s assume, arguendo, that conservatives/Republicans manage to keep control of Congress, the White House, and the Supreme Court for the next fifteen years, such that sixteen years will have passed under the reign of conservatism. If conservatives get everything they want in the next fifteen years, how will day-to-day life look different come the 20th of January 2041? Or to put it more bluntly: What is conservatism working towards?
Here’s my solution. A judge passes away (may they rest in peace), is impeached or resigns/retires, opening up a seat. The 3 branches of government, the Executive, Legislative and Judicial each provide a replacement.
The president picks one as per usual, the House Minority Speaker picks one to maintain a partisan balance and the remaining Justices also choose one. The Senate confirms as per usual, all three of them.
That would mean court stuffing could still be possible (if not expected), as the Judicial and Executive choices would potentially be aligned. It would also leave us with 11 justices, still an odd number so no even split votes, which is good, but the risk of partisan judiciary capture is still high.
This is where the other part of the country can join in: the people. Every odd-numbered year, along with the usual local elections, the sitting judges and the newly chosen candidates are all put on a ranked-choice ballot. The top 9 out of the 11 remain in the Supreme Court.
This should keep the court more aligned with the will of the people, keep the court rotated with fresh stock and prevent dust from building up on hairless pates while still allowing the politicians to practice their usual political chicanery.
Having the judiciary ballot in odd-numbered years will also keep elections in the minds of the people, hopefully helping people pay attention to the powers that be and the choices they make. Hopefully…
The ranked-choice ballot should also have a ‘no confidence’ ranking, in case the entire Supreme Court is somehow packed entirely with baffoons and sycophants. The people can say oh hell naw and reset the whole damn board. If any Justice gets more oh hell naw votes than it gets rankings, out they go.
Of course, this could lead to a situation where the entire court is booted by the people. The court suddenly grows to 27 as 3 replacements are picked for each spot as detailed above. 2 years later, it happenes again, the court becomes an unwieldy 81 member force and the bench is upgraded to bleachers. 15 years later, we have more judges than we have citizens. Everyone wears powdered wigs. Chaos has been unleashed. Pandora opens her box for all. America has finally become great again.
Here's my idea
Every two years the longest serving justice must retire. The first nominee of a president’s term is automatically seated. The nominee they get at the mid-terms goes through the traditional confirmation process.
This remains as bad an idea as the first time you proposed it.
Depends how it’s implemented, but it’s likely to require an amendment. For example…
These implementations would absolutely require an amendment. Supreme Court justices serve for life; that’s in the Constitution, and so is needing them to be appointed and confirmed as Supreme Court justices in particular.
That could be done without an amendment, but the President would still have to appoint those people and the Senate would have to confirm them. Congress couldn’t just pass a law elevating them. Future Presidents and future Senates would also have to continue to do this, without nothing in the law or Constitution making them. Do you trust the 2032 Senate, in the year before the 2032 election, to confirm SCOTUS nominations of the opposing party’s President? Haven’t we already seen what can happen there?
They could hear more cases, but if some other panel could rule another way on a near-identical case tomorrow, is anything really “resolved”? Or do you want it where 5 justices can make a ruling binding on not just the lower courts but the other 95, unless and until it’s heard en banc?
You could do that any time anyway. The main problem is how the law would suddenly change in a bunch of weird ways if you move a state from one circuit to another.
Not if you still have en banc for the cases perceived as important! I suppose it might undermine strategic timing for the cases not perceived as important, although then you’d have to expect it wouldn’t have reached the current SCOTUS in the first place, because as you say they don’t hear all that many cases. So I’m not sure what that even fixes.
Yes, I do make that argument. It’s often not as serious to have splits at the circuit court level because it’s at least consistent within that circuit. I might know what the law is in the 7th Circuit, but if it all depends on which random set of Supreme Court justices hears the case, I know nothing. And that’s a bad thing, to be clear.
You would also be giving a very large amount of power to whoever would be appointing all these people in the first few years. Adding just 1 seat per year would make this take nearly a hundred years to implement, and any proposal would certainly add seats faster than that – but even just adding 4 seats in a single 4-year presidential term plus whatever the normal turnover is, would give the President a rather extreme influence on the court makeup. Trump has appointed 3 of 9; imagine if it was 7 of 13. Not to mention that if you take them from existing appeals courts, the President would get to appoint all the replacement circuit court judges (even a 100 member Supreme Court wouldn’t be enough to hear all appeals, after all) and of course those replacement circuit court judges would then all be in line to be in the expanded SCOTUS in the future. And if you’re doing it all at once but waiting for a favorable President (you’re not seriously saying we should do this right now so Trump makes 91 appointments, right?) then don’t even try to pretend it’s not court-packing.
Plus having a potential en banc SCOTUS hear a case (plus many more cases heard by the mini-SCOTUS panels) adds another layer to the appeals process. Federal cases already take far, far too long, and this potentially makes things take even longer.
Don't randomize it, but otherwise good
One hundred sounds like a decent idea, but I think it would be better for the whole court to hear them so that cases aren’t essentially subject to RNG. Then it will at least be more representative. Better to know it was a 62:38 split than potentially having probability hand a 10:0 ruling that the rest of the court would have rejected out of hand.
Hold on, everybody. Move your finger off the “hide this post” button!
I like this idea. I think the key is finding a way so that no President can appoint a bunch of new Justices all at once. Maybe every year the President can appoint two new justices until we reach the optimal number.
The number 100 may be too high. But something needs to be done.
Thank you for your attention to this matter.
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…says the guy who thinks ICE isn’t going far enough with its violence.