Anthony Kennedy retires

My new opinion piece for the New York Post: “Even after a king we regard as benign steps down, we might want to reflect whether kingship is a good thing….Both Kennedy and O’Connor were famously reluctant to lay down clear rules for future cases, preferring to leave options open for the exercise of their sense of fairness.

“Yet a sense of fairness provides no steady and stable basis for future cases. In the old courts of equity run by England’s Lord Chancellor, it came to be said that ‘Equity is as long as the Chancellor’s foot.’ As John Selden explained in the 17th century: ‘One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.'”


  • All of the recent events at the Supreme Court all point to the same obvious conclusion. We need a court with about 25 justices. If we had this, it would thereafter be unlikely that any single (unelected) judge could have as much absolute power over so many Americans ever again.

    Compared to all other western democracies, we have far fewer justices. Further the number 9 for the number of justices is almost random. This number has varied widely over our history, always related to politics, not the sound administration of justice.

    Rather than give on president the power to nominate 16 justices, I suggest that each president, during each term, be given the power to nominate 2 justices, and perhaps requiring a real 60 vote Senate super-majority to confirm. In this way, both parties could negotiate with the general approach of “you get one and we get one.”

    The likelihood of 1 vote majorities would greatly diminish, making each decision less contentious,

    • For your plan to work, it would require a constitutional amendment.

      First, you would have to fix the size of the court by amendment, or no matter what size you set it to now, congress could increase or decrease the size of the court on a whim in the future. The minimum size of the Supreme Court specified in the constitution is 1 justice. Article 3 says nothing about the court, though a Chief Justice is mentioned in Article 1 Section 3 Clause 6.

      Second, to have an enforceable super-majority requirement for confirmation of justices, this too would have to be established by constitutional amendment. You can not rely on Senate rules for this. There is pre-Civil-War SCOTUS precedent that both the House and the Senate may change their internal rules at any time by simple majority, even if they enact rules claiming to require a super-majority for rule changes.

      Third, you call for adding 16 justices to the court at a rate of 1 ever other year (two per four year presidential term). So it will take 32 years (8 terms) to reach full size. Over that much time, even justices who were nominated as part of the expansion could begin to retire.

      A total of 113 Justices have served on the Supreme Court of the United States, the highest judicial body in the United States, since it was established in 1789. Supreme Court justices have life tenure, and so they serve until they die, resign or retire, or are impeached and removed from office. Among the current members of the Court, Associate Justice Anthony Kennedy is the longest-serving justice, with a tenure of 11,090 days (30 years, 132 days) as of June 30, 2018. For the 104 non-incumbent justices, the mean length of service was 6,112 days (16.7 years) with a standard deviation of 3,620 days (9.9 years). The median length of service was 5,740 days (15.7 years). Their period of service ranges from William O. Douglas’s 13,358 days (36 years, 209 days) on the Court to the 163-day tenure of Thomas Johnson.

      With an average term of 16.7 years, half of the original expansion justices could be expected to retire before the court even reaches full size.

      How does your plan handle vacancies that crop up in the sitting court over the very long period of expansion?

      • Until your comment I was unaware that Thomas Johnson, a notable figure in local history in my part of Maryland, was distinguished as the Justice with the shortest tenure on the Supreme Court.

    • If we’re choosing a fix irrespective of feasibility, I’ll quote from the end of the linked article:

      “…too much depends on what the Supreme Court does because law looms too large in our lives, because there is too much legislation and because too many issues are resolved in Washington that the Constitution would have left to state and local workings.”

      We properly dilute the Court’s power not by adding Justices but by putting that power back where it should be. It almost never happens that you hear a politician say, “Wow, that really is a problem. And I actually have a great idea that would fix that problem. But it’s not my problem to fix.”

  • I would think with a large number of justices any deaths/retirements/impeachments could be let lie until normal two per term appointments beefed the body back up. On the other hand, calling a constitutional convention would be so radically cool! 😀 Mayhaps a clarifying amendment for the second? Maybe boosted teeth for the fourth and fifth to cover the digital age and double tap the third party doctrine? Establish that the fourth and fifth cover no matter where in the world a citizen or legal resident happens to be at the moment? I mean seriously, there is no language whatsoever in the constitution that says that the fourth/fifth/first-last do not apply within x miles of a border… So there needs to be the law enforcement/federal government needs to remove it’s cranium from it’s rectum and stop playing games with citizens rights that the government is supposedly powerless to restrain… The fed doesn’t give me rights, I have merely allowed it to have some power, on some enumerated subjects, as restrained and defined by a document called the constitution. Just because some morons employed by the government forget themselves and where the power actually comes from doesn’t mean that is the way it’s supposed to be. EO 12333, fisa, etc would all be on the chopping block for a fast beheading if it were up to me. The first time a fisa court judge found that it had been misused would have been the first set of jailings for abuse of power.

    • Be careful what you wish for. A constitutional convention, once convened is not so easy to control.

      There are a lot of people out there who would like to repeal 2A.

      And if you want to put real teeth in to 4A & 5A, start with an amendment barring the application of “qualified” immunity or any other form of immunity against civil suits for rights violations.

      • “A constitutional convention, once convened is not so easy to control.”


        In fact, the Continental Congress endorsed the Philadelphia convention in 1787 “for the sole and express purpose of Revising the Articles of Confederation”.

        In other words, a reasonable person might conclude the convention that produced our present Constitution was a runaway, contrary to very explicit guidance.

        That’s why my nightmare is another runaway convention, one that would produce a dense EU-style Constitution running to 500 pages or more. But without any of the genius of our present Constitution, That would be enough to keep any arbitrary number of Supreme Court Justices fully occupied until the end of time – or until the collapse of the Republic – whichever comes first.

        No, thank you.

        • “In other words, a reasonable person might conclude the convention that produced our present Constitution was a runaway, contrary to very explicit guidance. ”

          I agree. See: How Alexander Hamilton Screwed Up America

          A number of the federalists, Alexander Hamilton chief among them actually wanted to reduce the individual states to mere corporations. They couldn’t get that to pass, but they did manage to build a good number of poison pills into the final constitution. Among them the necessary and proper clause.

          When Hamilton went to his state ratifying convention, he got a lot of push back on the commerce clause + the necessary and proper clause. A lot of the members of his state ratifying convention were concerned that the combination of the two would allow for the creation of a national bank. Hamilton swore to them that the constitution, not even the commerce clause combined with the necessary and proper clause, would not allow the creation of a national bank.

          Then Hamilton became the first Secretary of the Treasury under George Washington. One of Hamilton’s first acts as Secretary of the Treasury was the creation of a national bank.

          The book I linked to above details many cases where Hamilton and other federalists put forth “compromise” language much weaker than they first proposed but allowing a much stronger central government than others wanted, then went back and outright lied to their state ratifying conventions about the effect of those same clauses.