The New Nine: Make The Supreme Court Legitimate Again

In advance of the election, Rick Hasen wrote an op-ed for the New York Daily News, which means you probably weren’t among the twelve who read it.

“We need nine,” the refrain goes. But it’s the balance of power on the Supreme Court and not the number of justices that matters. The fate of many of our most cherished rights hangs in the balance of not just the presidential race, but control of the Senate.

Neither the presidency nor the Senate went the way Hasen wanted.

A conservative Supreme Court is more likely to protect broad gun rights, take a narrow view of federal power against the states, and the rights of businesses over workers and consumers.

That’s why I’ve called control of the Supreme Court the most urgent civil rights issue of our time.

Not that anyone, other than his mother, gives a damn what Hasen “called,” but this is the wrong-headed thinking that has permeated academia and politics for too long. Both presidential candidates succumbed to it, though one, being a lawyer, should have known better. One promised a politicized court one way. The other promised the same the other way.

What no one, Hasen included, considered was the need of a nation for a Supreme Court that was smart and fair, open to the best legal arguments and not dedicated to a political cause.

Cristian responded:

Hasen is right that the next slew of appointees to the Supreme Court, which will range from two to four given the ages and circumstances, will matter enormously. And Cristian is right that a courtful of Sam Alitos will prove disastrous to the constitutional rights of defendants, and there will be a huge fight over how partisan the next round of nominees will be.

But the solution for which we should push isn’t our partisan versus their partisan. If that’s the fight, then we just lost. The goal should not be, as Hasen would have it, a politicized court dedicated to extremes, a legislature of Nine replacing a Court. The goal should be the legitimacy of the law, of the Court, of the Constitution. Not just the Second Amendment. Not just the Fifth and Fourteenth. All of it.

There will be fights ahead, war perhaps, over this. When President Obama nominated Merrick Garland, there was no joy among criminal defense lawyers. He might have been fine on abortion, but he was a nightmare on defendants’ rights. If that was the best a Democractic president could muster, then we were screwed either way. It doesn’t really matter whether they slaughter you with one bullet to the head or a hundred. You’re still dead.

So is all lost? Perhaps not, or at least not nearly as much as one might suppose from the morning’s headlines. Buried deep inside the papers is the fact that eight of nine marijuana referendums passed. Americans may not be ready for the eradication of our tradition, but they may also not be ready for the police state. Despite Trump’s rhetoric for the purpose of getting elected, he’s got a lot of Democratic sensibilities. More importantly, he’s far more pragmatist than ideologue. This isn’t a man dedicated to a cause other than winning an election and self-aggrandizement.

The list of potential appointees proffered during the campaign is a scary one for most of us, as most are ideologically bound to the extremes, and not the extremes that advocates of constitutional rights would prefer.  If the nominees are chosen from this list, it will be the flip side of the ideologically bound group that Clinton would have offered. If the fight was for a partisan Court, then the fight has been lost.

But if the fight is for a Court that will survive each ebb and flow of politics, every change in hemlines and favorite flavors of ice cream, then we can fight for a Court that we can all live with, even if we won’t give the justices cool rapper names.  That’s the fight we need to make, to end the choices bound to the extremes and fight for neutrality and legitimacy.

Imagine, a Supreme Court that doesn’t serve a political master. It won’t please everyone. It surely won’t please us most of the time. But as a branch of government, smart and neutral is what the Court should be, even if it’s not the Court of our dreams.

36 thoughts on “The New Nine: Make The Supreme Court Legitimate Again

  1. Turk

    Perhaps the only way to depoliticize the court is with term limits, and regular rollover of justices. Then presidents wouldn’t be forever looking for 40 and 50-year-olds to appoint so that they can sit on the court for 30-40 years. With each a appointee being less important, there would be more incentive to appoint good, balanced judges.

    1. SHG Post author

      Life tenure burned Ike when he learned that Earl Warren wasn’t the guy he thought he was. Since then, most have seen pretty much as expected. I don’t know what the solution is, a better Senate? A better President? A better nation? But since it’s the least dangerous branch, integrity is all it has to offer, and everybody seems hellbent on squandering it. We need a viable Supreme Court, one way or another.

  2. Bartleby the Scrivener

    A court packed with Samuel Alitos? Please pardon me while I shudder.

    I was going to say ‘Thanks, but I’ll take the walk of a thousand Legos instead.’

    Instead, I’ll stick with the Bartleby theme and say, “I prefer not to.”

    1. SHG Post author

      That’s why it can’t be extreme ideologies in competition with each other. Do you not see how that works, where one side’s extreme is met with the other side’s extreme? If you don’t want a court packed with Sam Alitos, then don’t try to pack it with Sam Alitos of your own.

  3. Billy Bob

    The Court needs to be “packed”–FDR’s solution–or it needs to be eliminated altogether (thru attrition, as has recently been bantied about by none other than Sen. McCain) and replaced with a computer “program” which will unfailingly–failsafe mode–get things right. A court which grants cert. to a mere 2-3% of petitioners is a court which is not doing its job and is derelict of duty. In case anybody was wondering, it’s not easy getting docketed, and it’s even harder achieving cert. The High Court is not really interested in the whining and complaining that streams in from the hinterlands, the highlands, the lowlands and flyover territories of the U.S. of A. Some of them would prefer to go hunting and fishing, play golf or simpley attend the Opera. (You know who we’re talking about!)

    Before we leave, we would like to pat ourselves on the back and remind the readership that one Billy Bob implicitly predicted the demise of the Billary Clinton machine which tried desperately to roll over the electorate of deplorables and unmentionables in flyover country,… on this very blog, recently, more than once. For the record: We live in the libral Northeast, not too far from B0SSton and NuYawk. Our county, predictably, went for the crabs, the DemoCrabs.

    If past is prologue, not much will change with the Court [ir]regardless of who is Prez or whom the Prez nominates and the Senate, God Willing, confirms. Just as nothing changes locally, no matter how many civilian review complaint boards they set up: Just another “paper tiger”! Oh puhleeeze? Decades of Court-watchers and Court-watching have achieved little justice in the land and tons of misery. It has however produced reams of commentary and tons of books which tell us how great the Court and its justices are or have been. Some of those books are written by guys whose first names are “Jeffrey”. There are plenty of Jeffreys out there who like to write books about the Supremes. And plenty of people who supposedly buy these books, and presumably read them for evening entertainment or beach-reading material.

    Better Dayz are a comin’, trust it. We turn over a new leaf and start a new chapter, one which will be a-political, trust it. That’s a direct quote from The Donald.

    1. SHG Post author

      In recognition of the day, you get your full comment posted today. If the world is nuts, let it go whole hog, baby.

  4. David Woycechowsky

    Tummyrubs for this post. I agree and I have not seen these opinions expressed elsewhere (at least recently).

    1. Wilbur

      A few months ago RBG publicly said she would have to leave the country if Trump wins. She then had to walk that back quicker than Bill Robinson when it went viral. Bless her pea-picking heart.

  5. Richard G. Kopf


    A+ post.

    For what it is worth, I hope, without much of a rational justification, that the next Justice will be (1) practical; (2) not a “deep” thinker; (3) an ordinarily good lawyer (not a judge) who spent his or her career in the civil or criminal trial trenches; and (4) who believes common law legal reasoning is far superior to textualism, originalism, living constitutionalism, or any other ism. Oh, and one more thing: the new Justice must have gone to a state law school that is nowhere near the top of the ratings.

    Then again, I still believe in the tooth fairy. All the best.


    PS I don’t understand why you are so mean to Rick Hasen. He once was kind enough to inform me that I had misspelled his name. I felt awful.

    1. SHG Post author

      I didn’t think I was mean to Rick. Just because I point out that his scholarly view is a bit colored by his personal feelings suggesting just a wee bit of intellectual dishonesty doesn’t make me mean, does it? Well, maybe a little.

    2. Wilbur

      Trump still has to get a nominee through a filibuster-vulnerable Senate. It’ll be interesting to see who he sends up there.

      1. Billy Bob

        Knowing Donald the way we do, he may wait till the end of his first term and then nominate himself. The filibuster-prone Senate will be screaming the whole time for the Prez to nominate someone, anyone. He thumbs his nose at them until they cry “Wolf!” We would not put it past him. On the other hand, he may disrupt routines and nominate one of the Clintons. They’re both lawyers and now both unemployed. What a pity! Unless you consider making vapid speeches “work”? Or working with ghost-writers! Watching their ill-gotten assets grow is also taxing,… no pun intended.

    3. Billy Bob

      You know as well as we do that graduates of state law schools mostly become public pretenders and government functionaries (pencil-pushers). They wear ill-fitting suits and always appear to be in need of a barber or hair-dresser. Their shoes are never shined. They are uniquely unqualified for the High Court.
      Only graduates of our most prestigious law schools need apply! Can U say Haaavad? Can U say Yaaale?
      Have you ever heard of Columbia or En Y You? And then always Podunk, which we believe is located out your way in flyover territory.

    4. traderprofit

      …who believes common law legal reasoning is far superior to textualism, originalism, living constitutionalism, or any other ism.

      Except SHGisms.

      There’s my SJ Phd to consider.

      1. Richard G. Kopf


        You are close but no cigar. After the Ohio State game, our football team (the best we thought that money could buy) completely taints anyone who went to UNL including lawyers who attended the law college.

        But, wait. I just thought about Clete Blakeman, the NFL ref. He is a great guy, a good plaintiff’s trial lawyer, a nice person, smart and former Nebraska quarterback.

        Besides, after Super Bowl 50, a certain segment of our society went gaga over Clete. See:
        So who was the hot ref calling Super Bowl 50? Social media drools over Clete Blakeman.

        So, maybe The Donald should consider Clete! Given Trump’s list of potential Supreme Court candidates, I double dog damned certain that Clete would be a better pick.

        All the best.


        1. Gregg

          Judge Kopf,

          I like to think that loss won’t hang over our heads forever … but that might be a bit optimistic. At least we should be able to beat Minnesota here in a few days. In any case, Justice Blakeman has a nice ring to it.


  6. bacchys

    That’s a nice thought, but we’re not going to get it.

    Instead of a Clinton nominating someone who views civil rights as a function of what group/s you belong to, we’ll get a Trump nominee who thinks the notion of civil rights is up there with unicorns and Santa Clause.

  7. st

    Appointing one Nazgul or four to make the Nine whole again can’t restore the lost legitimacy of the court or the law. How/when will they undo travesties like Kelo v. New London, Korematus v. United States, Davis v. United States, etc? The Trumpslide shows that you can tell people they don’t understand why they need to be screwed, that the words in the Constitution don’t mean what they say, but that doesn’t mean the deplorables will go along.

    Like the dark lords in Tolkien’s works, the Nazgul were once human. They had lives, families, and homes. Long ago they were seduced by power, and little by little they have given up their humanity, their compassion, even their ability to read and understand the meaning of simple, declarative language. Now they live in a netherworld, interacting with our world only to further erode the chains that once bound their master. They can cause great fear among mortal men and women, but they feel nothing, and no longer understand sickness, or privacy, or liberty, or life itself.

    “They could see things in worlds invisible to mortal men; but too often they beheld only the phantoms and delusions of the State. And one by one, sooner or later, according to their native strength and to the good or evil of their wills in the beginning, they fell under the thralldom of the power that they wielded and began to support the supremacy of the State over all things. And they became forever invisible save to those that served the State, and they entered into the realm of shadows. The Nazgul were they, the Benchwraiths, the Enemy’s most terrible servants; darkness went with them, and they cried with the voices of death.”
    (My apologies to JRR Tolkien for paraphrasing The Silmarillion. )

  8. st

    Bad decisions don’t just happen, they are intentional and crafted with some care. The job description doesn’t include kowtowing to public hysteria and political pressure; just the opposite. The Korematsu decision was no accident, 6-3, and remains with us. As another Nazgul noted:

    “There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”

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