Dwain Northey (Gen X)

Nine Justices, Thirteen Circuits, and One Hell of a Bottleneck

Well, here we are again.

Chief Justice John Roberts basically looked at the White House ballroom case and said, in the judicial equivalent of “Yeah, this probably isn’t legal, but apparently this is what we’re doing,” and then watched the Supreme Court’s majority allow construction to continue anyway.

To be fair, the Court didn’t actually declare the ballroom legal. The majority’s ruling was about whether the preservation group challenging the project had sufficient standing to bring the case. Roberts, joined by the Court’s three liberal justices, dissented and wrote that the construction was “likely unlawful,” pointing specifically to Congress’s authority over federal property. (Justia Law⁠)

And that distinction matters.

But here’s the problem: when the Supreme Court says something is probably unlawful and then the practical result is, “Well, go ahead and keep building it,” ordinary Americans are understandably left wondering what the hell the word “law” is supposed to accomplish.

This is precisely why I keep coming back to something we’ve discussed a hundred times:

Nine justices are not enough.

We have thirteen federal judicial circuits and nine Supreme Court justices. That means the highest court in the land is operating with fewer members than there are appellate circuits whose decisions it is ultimately supposed to review.

That made a certain amount of sense when the country was considerably smaller, the legal system was considerably smaller, and we weren’t trying to govern a nation of more than 300 million people with institutions designed for a vastly different America.

Congress has the constitutional authority to structure the Supreme Court, and the Constitution itself doesn’t specify that the Court must have nine justices. Congress has changed the Court’s size repeatedly throughout American history. (Congress.gov⁠)

So maybe it’s time to stop treating nine like it was handed down from Mount Sinai on stone tablets.

Make it thirteen.

One justice for each federal circuit.

That doesn’t magically solve every problem. It doesn’t make justices more objective. It doesn’t eliminate ideological disagreements. And it certainly doesn’t guarantee that the Court will suddenly start making decisions everybody likes.

But it could reduce the absurdity of having an institution with enormous power concentrated in nine people whose appointments can shape American law for generations.

And while we’re fixing things, let’s talk about the other elephant sitting in the courtroom:

Lifetime appointments.

I’m not talking about removing judges because we don’t like their decisions. That’s exactly the kind of political nonsense judicial independence is supposed to protect us from.

I’m talking about a reasonable term of service on the Supreme Court.

Eighteen years.

That isn’t some crazy number pulled out of a hat. Eighteen-year Supreme Court terms have been proposed in Congress, with a system designed to stagger appointments so that presidents would ordinarily make two appointments during a four-year term. Under such proposals, justices could continue serving in the federal judiciary after their Supreme Court service ended. (Congress.gov⁠)

In other words, you’re not firing the judge. You’re changing the job assignment.

Serve eighteen years on the Supreme Court. Then go back to the federal appellate bench or another appropriate judicial role.

You still have judicial independence.

You still have experienced judges.

You still have people who have spent decades learning constitutional law.

What you don’t have is a system where one presidential election can effectively determine the ideological composition of the Supreme Court for the next thirty or forty years.

Because that’s where the system gets ridiculous.

We have turned Supreme Court appointments into political nuclear warfare because everybody knows that one vacancy can determine the direction of constitutional law for a generation.

And then we act surprised when politicians behave like the fate of Western civilization depends on getting their person into that chair.

Remember Merrick Garland?

In 2016, Senate Majority Leader Mitch McConnell refused to hold hearings on President Obama’s Supreme Court nominee, arguing that voters should have a voice in selecting the next justice. Garland’s nomination sat there for 237 days without a hearing. Four years later, McConnell’s Senate moved forward with Amy Coney Barrett’s nomination just 46 days before the presidential election. (Senate Judiciary Committee⁠)

That’s not a system.

That’s a game of political chicken played with lifetime judicial appointments.

And here’s the funny part: everybody pretends they’re defending some sacred constitutional principle when what they’re really defending is who gets to pick the next lifetime player on the Supreme Court.

If we had eighteen-year terms with regular, staggered appointments, the stakes would change dramatically.

You wouldn’t have a 39-year-old justice potentially sitting until they’re 89.

You wouldn’t have presidents gambling on vacancies.

You wouldn’t have senators deciding that the Constitution means one thing when their party occupies the White House and something entirely different when the other party does.

And perhaps most importantly, we wouldn’t be asking nine human beings to carry the constitutional weight of an entire nation indefinitely.

The Supreme Court is supposed to be one branch of government, not the final resting place of American political consequences.

And maybe that’s the bigger lesson from this ridiculous ballroom episode.

The problem isn’t just the ballroom.

The problem is a political system that has increasingly turned every institutional decision into a battle over who has enough power to get around whom.

Congress says one thing.

The president says another.

The courts get dragged into it.

The Supreme Court says, essentially, “We aren’t necessarily deciding whether this is legal, but we’re not stopping it right now.”

And everybody walks away pretending that’s somehow a satisfying resolution.

It isn’t.

We shouldn’t want a Supreme Court that belongs to Republicans.

We shouldn’t want a Supreme Court that belongs to Democrats.

We should want a Supreme Court that belongs to the Constitution and the American people.

And if that requires expanding the Court to thirteen justices, establishing regular eighteen-year terms, staggering appointments, and allowing experienced justices to continue serving elsewhere in the federal judiciary, then maybe it’s time to stop pretending that institutional reform is some radical assault on democracy.

Maybe the radical idea is continuing to operate a twenty-first-century democracy with an eighteenth-century political architecture and then acting shocked when the damn thing creaks.

Because nine people shouldn’t be able to become the constitutional equivalent of a permanent homeowners’ association for America.

And neither should one president.

And neither should one Senate leader.

And neither should one political party.

The voters should get a meaningful say in the direction of the country through elections.

The president should nominate.

The Senate should advise and consent.

The courts should interpret the law.

Congress should make the laws and exercise its constitutional authority.

And nobody should get to rewrite the rules halfway through the game because suddenly the political math isn’t working in their favor.

If we’re going to have a government of the people, then perhaps we should stop designing it around the people who happen to hold power today.

Because today eventually becomes yesterday.

And that’s when the people who changed the rules discover the oldest rule in politics:

Eventually, somebody else gets to use the rules you created.