Dan Popp
Why nine?
A simple solution to the over-importance of one Supreme Court Justice
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By Dan Popp
February 24, 2016

To live by one man's will, became the cause of all men's misery. – Richard Hooker

A nation subject to the whims of one person is the evil from which our Founders were trying to save us. Yet we've accepted this deformation of our republic so completely that we've developed a common term for it: "swing vote." One Supreme Court Justice can make the difference between, say, the federal government supporting the institution of marriage or inventing a sham version of it. This isn't the only problem with our lawless Supreme Court, but it's one with an easy and simple solution.

We need more Supreme Court Justices.

There's no legal, rational or historical reason for the Supreme Court to consist of nine Justices, as it happens to do now. The complement has been as low as five, and as high as ten. If you're accused of stealing a pack of chewing gum, you may be tried by a petit ("small") jury of twelve folks. But if you're in the class of "all unborn citizens present and future," a mere nine mortals will be sufficient to dispatch your rights. I mean, to dispose of your life. Oops, uh, to decide your case. This is clearly not "fair," to use one of the barbarians' favorite words, nor is it proportional or right.

When the government prints money, it reduces the purchasing power of each individual dollar bill. Well, it's time to mint some Justices.

How many is enough?

I suppose a hundred would be unwieldy. We could surely allow the highest court in the land to be as large as a "small" jury. Let's start with 12. If the best number turns out to be 24, then the progressive mind should be large enough to imagine even that.

But instead, I hear the barbarians shriek, "Court packing! Court packing!" (as if I were going to grant myself or my party the right to fill the new seats). That objection is easily answered with a precedent. When Congress proposed the 22nd Amendment limiting a President to two terms in office, they exempted the then-current occupant. A law expanding the Supreme Court could specify that the next President must nominate enough candidates to fill ten seats; and Presidents thereafter must nominate enough to fill twelve seats. Or some variant of that idea.

I like the concept of an even number of Justices because national resentment is high whenever an important issue is decided by "one vote." OK, that's a little more symbolic than substantive, I admit. But an even number also allows for a tie. In case of a "no decision," I presume that the lower court's decision would stand. If you can see how this makes decisions of the lower court more important, then you can also understand that it makes the Supreme Court a bit less important.

To fully reform the court, we'll need to resurrect the Founders' understanding that authority to interpret the Constitution rests in all three branches of the national government, plus the States, and ultimately the People – not merely or even primarily in the Supreme Court. Here's an article I wrote about that. But restoration of the republic is a big, long fight. All I'm proposing here is a simple fix to the "number" problem. It doesn't even require a constitutional amendment: Congress sets the number of Supreme Court Justices. We've tried 5 and 6 and 7 and 8 and 9 and 10.

Why not try 12?

In a multitude of counselors there is safety. (Proverbs 24:6b, NKJV)

© Dan Popp

 

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