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You Can’t Take Politics Out of the Supreme Court


This piece about Pete Buttigieg’s judicial reform proposals contains this inadvertently hilarious claim:

Buttigieg hasn’t ruled out other possibilities for court reform, but says the 15-justice plan is “the one that I find most intriguing.” Supreme Court experts, though, have raised concerns about whether the proposal is constitutional, as well as whether it could backfire by reinforcing the perception that there are Republican and Democratic justices.

If this “perception” weren’t also obviously accurate, Merrick Garland would be on the Supreme Court as we speak.

Anyway, this is the proposal:

Pete Buttigieg, the mayor of South Bend, Indiana, has talked about his plan to overhaul the high court since his first days as a candidate. In short, it calls for expanding the number of justices from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10.

It’s hard to see this as workable. The constitutional objections are serious if not dispositive; justices can’t be appointed by anyone but the president absent a constitutional amendment. And even if it could work, justices chosen by other justices wouldn’t be “apolitical” because there’s no such thing. And in the (extremely likely) event that the 10 justices couldn’t agree on 5 suitable candidates, how would you resolve the deadlock?

The big problem here is that taking the politics out of the Supreme Court isn’t a realistic goal. If we’re going to think about amendment-level reform the best option is fixed, non-renewable terms with appointments given equally to presidents. The court can’t be made apolitical, but it can be made to conform more closely to the outcome of presidential elections. (The real pie in the sky reform would also cut the Senate out of the process, because short-staffed courts are going to become a common problem going forward.)

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