Make the Court Smaller but Better

I fully expect that Donald Trump will put forward an exceptional nominee to fill the Supreme Court vacancy left by Justice Scalia’s death. Given the composition of the Senate and the bench of judicial talent, it should be hard to get this selection of a new Justice wrong.

After this one, though, all bets are off. The tempest swirling around a potentially Court-moving nomination may be too intense to expect that a sound jurist could make it through. And another Anthony Kennedy to replace the current Anthony Kennedy would be another thirty-year mistake. (For one view of how Justice Kennedy’s nomination looked at the outset, see this 1987 New York Times article by the recently elected President of the American Philosophical Society.)

Before the 2016 presidential election, I advocated prospectively reducing the size of the Supreme Court to seven Justices. Among other things, I suggested that “no new Justices for a spell might be better than adding anyone who could make it through our rotten confirmation process.” Now that we can reasonably expect confirmation early next year of a new Justice who shares Justice Scalia’s understanding of the Constitution, I’d obviously like to see that happen.

With that Justice confirmed, though, the elected branches should trim down the Supreme Court’s size to seven justices. That remains one of the safest strategies to aid in the healing of what ails our constitutional law.

If unfilled, the next two vacancies would bring the Court down from nine to seven.  Those vacancies are likely to come about through some combination of departures by Justice Ginsburg, Justice Kennedy, and Justice Breyer. A seven-Justice Supreme Court without any two of those three would feature a solid four-justice majority of Chief Justice Roberts, Justice Thomas, Justice Alito, and the new Justice who fills the Scalia seat.

Legislative reduction in the Court’s size in reaction to the most aggressive and adventuresome decisions of the past several decades might lead to greater legal fidelity on the part of the Justices who remain. And a smaller Court would empower the Chief Justice to more effectively mass the Court through judicious opinion assignments.

The principal problem with this proposal is that it is entirely unrealistic at this point. It is difficult to imagine how legislation like this would have a chance of becoming law given current political alignments. A congressional move to reduce the size of the Supreme Court would only occur in a time of substantial distrust of the President, who would almost certainly veto it anyway.

It is nonetheless worth staying aware of the legal availability of a move like this and periodically evaluating its advisability. Should President Trump at some point prove unable or unwilling to put forward the right kind of judicial nominee, seat subtraction is an alternative to simple Senate refusal.

Reader Discussion

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on December 21, 2016 at 09:07:53 am

No. Pack the court now with at least three young conservative justices. Pick out and proud conservatives and actually fight for them instead of hoping for stealth conservatives.

If you lower the number of Justices to 7 then the next Democrat President will argue for increasing it back to 9 and we will be stuck with the same mess we are in now.

Honestly, I don't understand how you can't see that coming. If I were a conspiracy theorist, I would accuse you of working for the other side. Your idea is that bad on so many levels. Trump says win big league and you say just settle for a draw?

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Image of Boxty
on December 21, 2016 at 10:38:52 am


Understand your point BUT:

How about this?

Let's GREATLY and YUUUGELY expand the Court. Let's put every SCOTUS decision up for review by the other branches and see what happens.

Heck, I would put it to a vote of the people, just for the fun of it. Perhaps, that is what is necessary for the Black Robes to receive their due comeuppance.

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Image of gabe
on December 21, 2016 at 12:36:37 pm

My thought is that Trump has shown the ability and willingness to pursue a good conservative agenda so far. He outwits the leftists and media at every turn. Until he shows a failing in this regard, I think we have to trust him to nominate and pursue good constitutionalists.

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Image of David Linton
David Linton
on December 22, 2016 at 09:39:38 am

Of Course, reducing the court was the better (only) option for preventing a Leftist Court Majority, had HRC been elected and Republican's maintained control of the Senate. But, you are bit harsh to accuse the author of working for the "other side", especially with what has proven to be the untrustworthiness of the so-called conservative Justices presently/previously robed.

The gravest outcome of turn-robe Jurists is that their fickleness gives the impression to the nation, by their wiliness to side with the left Justices, that the rightfulness of the law actually lies with the left's interpretation, (and this is what the left will argue) of it. No, better to reduce the seats than to seat Justices possessing weak or absent conservative convictions. Many ordinary people believe Roe is good law solely because of its survival of forty years of challenges. Many so-called conservative Judges/Justices, have perpetuated this fallacy by their assent. Better, too, to pack the lower federal courts with solid conservatives - a real impact can be made in four years by a determined Executive/Senate at this less visible level, and it is at these lower levels that the Progs have been able to create the greatest barriers and resistance to state legislative attempts to curb the civil abuses of the Prog agenda.

The key, of course, to preventing the "other side" from adding the seats back, is to maintain Republican Senatorial majorities.- in my view, much more doable than maintaining a Republican Executive.

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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.