Yes, we shouldn't let the Supreme Court get too small. I would say that there should be at least one justice for every federal circuit, currently thirteen. If the number of justices should fall below that number, then the current president should appoint one. If the appelate court system ever gets modernized so that there is a more reasonable number of circuits, then the number of justices would rise. The reason for this is that since the "business" of the court comes primarily from the appeal courts, the court could assign one justice to handle preliminarily one circuit court's output. However, the minimum could be tied to some other factor, such as one justice for each 50 million US citizens, or one justice for every four states. It could even be set at the current number of justices (nine). I like using the number of US circuit courts because it is a number that will necessarily vary, but conservatively, and because there is a functional relationship between the circuits and the Supreme Court.
However, I think that regardless of the size of the court, each presidential term should see the appointment of one justice. That is, one of the duties of each president, during each term, would be to appoint a new justice to the Supreme Court. Two-term presidents would obviously get two turns at bat. In fact, this may be about average for presidential terms, or at least in the same ball park.
It's a simple idea really. Every term, the president will appoint a Supreme Court justice. If, due to death or retirement, the number of justices should fall below the number of federal circuit courts, the current president will appoint a replacement. If a death or retirement in the court should occur before the president has appointed a justice during the term, bringing the number below the minimum, then the standard appointment for that term would come first. That is, the appointment would replace the retiring justice and restore the minimum. However, if after making his or her appointment for the term, the number is still lower than the number of federal circuits, then the president will continue to make appointments until the minimum is restored.
Under this system, the court could grow at the rate of about one justice every four years if relatively young, healthy justices were appointed, and the composition of the court would tend to reflect the recent history of electoral trends. Since the court would be larger, the results of the court on decisions would have more "dynamic range", and, possibly, be more just and more reflective of the will of the People. While it is true that every president would, under this system, leave his or her mark on the court, since the size would be larger, the impact of any given president would be, on average, less than what we have seen recently where some presidents have made two appointments (2/9) of the court. Each president, under the new system, would have an impact of 1/N, sometimes 2/N, where N would currently be at last 13; this is generally smaller than is currently the case. Since the court would usually be larger than the minimum, it would be possible for justices to die or retire without triggering a political frenzy, since they would not need to be replaced. If there are more justices than circuits, assignments to different circuits could more accurately reflect differences in the activity level in each circuit.
There would be an interesting political dimension to this: since after each presidential election, a new justice would join the court, presidential candidates could speak openly about their philosophy regarding the court. It would become a new element of presidential elections, one that I think deserves to be given a higher profile.
Greg Shenaut
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