That’s the suggestion
of Judge Richard Posner, one of the most respected jurists in the United States
and also a prolific scholar. He notes that other democratic nations have
supreme courts that are larger than ours. In a recent interview, he said, “we
have a crappy judicial system” and “most of the [legal] technicalities are
antiquated crap.”
He said that the current
Court is mediocre and highly politicized due to the political nature of the
selection of justices. He also believes justices should be retired by rule at
age 80. He just retired at age 79.
Adding 10 justices would take
much of the drama and randomness out of these nominations. It would also reduce
the possibility that a single justice could fashion himself or herself as a
swing or pivot vote, as Justice Kennedy perfected over the past 15 years.
The size of the Supreme Court
is set by statute, not by the Constitution. In the mid-1800s, the Court had 10
justices. It has also had six justices.
Judge Posner doesn’t
explain how to make this happen. No single president should be able to nominate
ten more justices! There would need to be a phase-in, and with these numbers, a
very lengthy period to give Democrats and Republicans a fair shot.
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