Last year I let loose with a provocative thought that I couldn’t get out of my head: that after Anthony Kennedy left the scene there was a constitutional crisis waiting for us. Not that I liked Kennedy’s jurisprudence, only that it seemed to me that the American people seemed to have developed an expectation that the Supreme Court acts to restrain and manage the competition between the two political parties. This is very different than trying to apply and interpret the Constitution come what may. My fear was that if the Court began to consolidate to one side or the other, that the losing partisans would quickly lose faith in democracy or in America’s institutions. If he’s our philosopher king, then his exit means regime change.
Pete Buttigieg, the mayor of South Bend, Indiana, has talked about his plan to overhaul the high court since his first days as a candidate. In short, it calls for expanding the number of justices from nine to 15, with five affiliated with Democrats, five affiliated with Republicans, and five apolitical justices chosen by the first 10.
But what I find interesting about it is that it is the way a semi-intelligent person (like Pete Buttigieg) would try to rebuild and institutionalize the Kennedy Court’s role as I described it. It means building the court in the image of the two parties, and having them select “apolitical” wise men and women — surely people drawn from the elite strata of American society.
Thankfully this proposal will go nowhere.