Expand the Supreme Court—By A Lot | Opinion

Now that the Supreme Court's term is done for the year, it's time to think about how to make the institution more resilient.

A few weeks ago, someone tried to kill Supreme Court Justice Brett Kavanaugh. A 26-year-old man, Nicholas Roske, showed up at Justice Kavanaugh's home with burglary tools and at least one weapon. When arrested, he told police that he wanted to kill Kavanaugh because of the leaked draft Dobbs v. Jackson opinion overturning Roe v. Wade, and because he was afraid the Court would rule in favor of Second Amendment rights in another pending case. He found Kavanaugh's home address online, where it has been widely shared by leftist protest groups.

There's a lot to note about this incident, including the possibility that New York's Sen. Charles Schumer—who threatened Kavanaugh and other conservative Justices, saying they would "pay the price" for overturning Roe—incited this attempted violence, and that Congress has been slow-walking legislation to improve Supreme Court security since threats started coming in earlier this year.

But I want to talk about the bigger picture. Indisputably, we live in a time when assassinating, impeaching, or otherwise removing a single Supreme Court Justice could flip a closely divided Court on important national issues, and when more and more extremists are talking about using violence to get their way in politics.

On a court with nine members divided 5-4 on many issues, you only have to get rid of one person. Especially when that person would be replaced by a president of the other party, as would have happened if Kavanaugh had been killed.

That's too appealing a target for some of the crazies out there, especially when "respectable" people in the press and in politics are egging on the anger.

It would be nice if we could tone down the political and media extremism, but that doesn't seem likely. It would also be nice if important political decisions weren't shunted to the Supreme Court, but that doesn't look likely either.

What we can do, though, is make the system more resistant to attack.

US Supreme Court building
WASHINGTON, DC - JUNE 29: A U.S. flag flies near the U.S. Supreme Court building June 29, 2022 in Washington, DC. The Court is expected to hand down a ruling tomorrow on whether the Biden administration can end the Trump-era Migrant Protection Protocols (MPP) program, which has kept asylum-seekers in Mexico since 2019. Alex Wong/Getty Images

One solution would be to make the Supreme Court bigger. Not via the sort of "court packing" championed by people who just want more votes for their side, but via a reshaping of the Court itself.

For most of its history the Court has had nine Justices, though that number has varied over the years. The Constitution doesn't set a number, leaving it to Congress.

I propose increasing that number to 59. Nine Justices could be appointed by the president, as they are now. The additional 50 would come from the 50 states. Each state's governor would nominate a member of the Court from his or her state, who would then be confirmed by the Senate as usual. (Although if you really wanted to go for a major change, the confirmation could be by the legislature of that state).

The increase in size would mean that changes due to death and retirement would be routine—no more bringing Washington to a halt every time a Justice retires. It would also remove some of the Court's mystique. People might believe in nine philosopher-kings in a temple of justice, but no one would believe in 59 philosopher-kings. Fifty-nine sounds more like a legislature, and if the Court is going to do legislative-type things, as it clearly does, maybe that's a good idea.

With a Court that big, the odds are that a single vote wouldn't be the deciding one very often, making assassination less attractive to anyone inclined to violence. That could spare the nation a lot of trauma.

And we'd probably also have a better Supreme Court. As my colleague Ben Barton argues in his new book, The Credentialed Court, today's Supreme Court Justices are a bunch of academic and bureaucratic superstars who share similar backgrounds and attitudes even when they differ politically. Earlier generations of Justices had more varied backgrounds and more practical wisdom. Fifty Justices chosen by governors would probably look more like them than today's judicial thoroughbreds.

Admittedly, this approach would require amending the Constitution to allow for appointment by governors (and confirmation by state legislatures, if you went that far). Alternatively, Congress could just require that 50 of the 59 Justices be bona fide residents of 50 different states. That could probably be done by legislation.

What we have now isn't working. It's a source of instability and possible violence. It's time to change.

Glenn Harlan Reynolds is a professor of law at the University of Tennessee and founder of the InstaPundit.com blog.

The views expressed in this article are the writer's own.