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Tipsheet

The Left Wants to Pack the Supreme Court. Law Professor Shares His Plan to Reshape It.

AP Photo/J. David Ake

He left Twitter eons ago, but University of Tennessee College of Law professor Glenn Reynolds has some ideas about the Supreme Court. You might have known him as "Instapundit" on Twitter and from his website—same name—that provided a daily and constant stream of content from right-of-center sites. If you got linked there, expect your post or site to get a spike in traffic. He's conservative on some issues but leans libertarian on others. With the left lusting to pack the Supreme Court over decisions it doesn't like—Reynolds decided to play their little game. He said that we should reshape the Court and expand it by a lot, which is constitutionally permissible. He wants 59 jurists. Nine of which will still be subjected to the usual process of a presidential appointment and Senate confirmation, but he has a new plan for how to confirm the other 50 (via Newsweek): 

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It would be nice if we could tone down the political and media extremism, but that doesn't seem likely. It would also be nice if important political decisions weren't shunted to the Supreme Court, but that doesn't look likely either.

What we can do, though, is make the system more resistant to attack.

One solution would be to make the Supreme Court bigger. Not via the sort of "court packing" championed by people who just want more votes for their side, but via a reshaping of the Court itself.

For most of its history the Court has had nine Justices, though that number has varied over the years. The Constitution doesn't set a number, leaving it to Congress.

I propose increasing that number to 59. Nine Justices could be appointed by the president, as they are now. The additional 50 would come from the 50 states. Each state's governor would nominate a member of the Court from his or her state, who would then be confirmed by the Senate as usual. (Although if you really wanted to go for a major change, the confirmation could be by the legislature of that state).

The increase in size would mean that changes due to death and retirement would be routine—no more bringing Washington to a halt every time a Justice retires. It would also remove some of the Court's mystique. People might believe in nine philosopher-kings in a temple of justice, but no one would believe in 59 philosopher-kings. Fifty-nine sounds more like a legislature, and if the Court is going to do legislative-type things, as it clearly does, maybe that's a good idea.

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I know the idea of justices being legislators sends chills down the spines of most conservatives as it should. That's not law. It's something that disturbed the late Justice Antonin Scalia immensely. Yet, the nomination and confirmation process shouldn't be a political circus either. It's become that, thanks to Joe Biden. The whole process is now a political event when it shouldn't be. Times have changed. 

With the Court's decision leading to people traveling to attempt assassinating these jurists, as we saw with Justice Brett Kavanaugh, Reynolds noted that a 59-person Supreme Court would make such threats of violence moot as one vote can no longer impact the outcome. He added that 59 justices would have a more diverse background instead of the academic tree they're all plucked from nowadays. 

"What we have now isn't working. It's a source of instability and possible violence. It's time to change," he concluded. 

I'm not that pessimistic. I think the Court we have works—it's just that we have nutty people who can't take defeat. Liberals believe they're entitled to win every election, argument, and Supreme Court nomination. That's simply not real life, which is indicative of the left's fascination and obsession with focusing on issues that aren't real to most people. Struggling to pay the bills is a real issue, one that's impacting millions of working families right now. Proper pronouns aren't what normal people care about. 

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The left will always threaten violence when it doesn't get what it wants. With more GOP governors in office now and potentially more after 2022, let's say this change goes through—it only expands the potential kill zone. The left will go local. Governors could be threatened. I doubt a change like this would sate the left's thirst for violence when it doesn't get what it wants, especially on the legal front. The left has used the courts to expand its agenda for decades now. The goal is to shred the Constitution, as the document prohibits a great deal of what it wants to do. One doesn't need to look past free speech rights to see how authoritarian the left has become.

Still, as an academic exercise, the thought of 50 more governor-appointed justices being confirmed by state legislatures is interesting. It's probably never going to happen. 

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