‘Going to 11’ by Bill Widen

William H. Widen

My colleague Bill Widen asked me to post this for him,

Going to 11

Many who oppose the conservative drift of the court now argue for an increase in the number of Supreme Court Justices to 11. The idea is to rebalance the ideological rightward shift of the court back to center by appointing one centrist and one left leaning justice. An increase to 15 justices is clearly much too 1930’s. Eleven is just right (or left?) because President Trump has now appointed 2 Justices.

Nigel Tufnel: . . . What we do is, if we need that extra push over the cliff, you know what we do?

Marty DiBergi: Put it up to 11?

Nigel Tufnel: 11, exactly. . . [From the film This is Spinal Tap (1984)]

We may face another Supreme Court vacancy at any time. If we have not gone to 11 by then, here is another “outside the box suggestion” which Chief Justice Roberts might use all by himself.

When there is a vacancy and the Senate does not seem inclined timely to perform its Constitutional duty of advice and consent, simply appoint a sitting judge from the DC Circuit to sit by “designation” to fill the spot. Choose the fill-in like one chooses the third arbitrator in a contract dispute—allow Democrat appointed Justices and Republican appointed Justices to settle on a mutually acceptable substitute—just a hunch, but somebody like Judge Merrick Garland might get the call.

This substitute would function like a shadow justice—he or she would listen to the oral arguments in the gallery and write up a report—indicating a recommended disposition of the case (much like a U.S. magistrate currently advises a District Court judge). The sitting Justices would have an agreement to engage in “paired” voting, like was done in the Senate to allow one senator to attend a wedding while the others voted on Judge Kavanaugh’s confirmation. The paired voting would be done to insure the outcome is the same as if the shadow justice had been a duly appointed Justice. We have replicated a Supreme Court staffed with 9 Justices. No Presidential nomination. No Senate advice and consent. No problem.

The Chief Justice would only invoke such a procedure as a stop gap when the Senate decides to shirk its responsibilities. It guards against a 4-4 vote at the Supreme Court. It shows bipartisan self-help by Justices working together to pick the substitute when the Senators fail to act like the adults in the room. It reflects a practical commitment to problem solving to achieve just outcomes and the appearance of fairness. Sometimes to fix things only duct tape will do.

Perhaps future appointments to the DC Circuit Court of Appeals could be made with the understanding that, when the Executive nominates, and the Senate confirms, these DC Circuit judges would form a “bench” of substitutes which might be called up by the Chief Justice. (Such judges already have life tenure on a bench, though for good measure any call-up from the minors could deposit an irrevocable resignation letter with the Chief Judge, agreeing to step down upon the appointment of a successor. Thus, technically, the substitute would have “lifetime tenure on the Court.”) The Senate and the President could, perhaps, retroactively designate all members of the DC Circuit for this purpose. That, of course, would require a bi-partisan effort to address a problem. For now, a self-help option might be handy.

Professor William H. Widen
University of Miami School of Law

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One Response to ‘Going to 11’ by Bill Widen

  1. Just me says:

    What’s wrong with the right drift of the Court? Would you be proposing a “fix” if the Court had drifted left?

    I would probably also prefer a court that leaned a bit to the left. But elections have consequences. And the notion that we should game the system to disregard the consequences of elections is more troubling to me than the upcoming right drift of the Court.

    If your answer is that you want a centrist court, a not-unreasonable response would be that the Court is always centrist because the center shifts with the changing electorate. At the moment, the center appears to be further to the right than it used to be. Once upon a time the Clintons (or at least Bill) held the center. Today it would seem that the center is found somewhere between McCain and Bush 43. And not surprisingly, the Court is also further to the right than it used to be – dare I say, at the center.

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