Same Game, Different Jerseys
I’ve long believed—and long said—that dividing the political world into “left” and “right” conceals more than it reveals. It’s like trying to understand baseball—or human nature—by charting the beliefs of Mets and Phillies fans. Sure, there are differences. But along every relevant dimension, they’re identical. Strip off the jerseys, and you’re basically looking at the same guy.
And let’s face it. Baseball is a lot more fun than comparing the corruption, economic illiteracy, and totalitarian impulses of Joe Biden and Donald Trump.
At least to me.
And while I don’t see a dime’s worth of difference between Trump or Biden, there are some narrow slices of politics and government where a left-versus-right analysis might be illuminating. One is the Supreme Court.
While judicial ideology doesn’t easily reduce to sloganeering or bumper-sticker definitions, Judicial Conservatives tend to look at issues through the lens of textualism, original intent, and the more dubious, history and tradition. Liberals, by contrast, adhere to the ideology of substantive due process, locating unenumerated rights—or pretty much anything they like today—within the Fourteenth Amendment, along with the occasional nod to evolving standards and pragmatism.
Broken Tools, Broken Bench
Now, let me be as clear as I can be: both of these philosophies are wrong. Wildly so. A proper judiciary would resolve disputes between citizens based upon facts, the most salient of which is the contractual relationship between the parties, and would otherwise exist to protect individuals from the depredations of Leviathan.
The American judiciary does neither.
Indeed, regardless of whether left or right is in charge, the courts do little other than smear a patina of objectivity and legitimacy on naked government power. Oh sure, it may force Trump or Biden to tap the brakes on illegal deportations or student loan forgiveness—unless they managed to first get a majority in Congress, that is.
But if you are an individual citizen trying to face down the government before the Supreme Court, you’ve already lost. Law, properly understood, is a set of explicit and comprehensive limitations on the legitimate use of force among a free people. In our system, law is always the expansion and justification for its use.
A Court Long Tilted
Given my decidedly jaundiced opinion of the Court—and all things government—you might be surprised to learn I support “packing the court.”
That’s right. I’m a court-packer.
From 1953, with the ascension of Earl Warren as Chief Justice, through the Burger Court and really until 1991, when Clarence Thomas replaced Thurgood Marshall, the Supreme Court was decidedly liberal. Since then—and especially since 2020, when Amy Coney Barrett replaced Ruth Bader Ginsburg—the Court has been decidedly conservative.
Indeed, while she has walked this back in recent years, arch-liberal Justice Elena Kagan stated, “We’re all textualists now,” acknowledging just how deeply conservative judicial philosophy has permeated the Court.
For nearly forty years, the Supreme Court of the United States leaned left. For the last twenty-five, it’s leaned right. No one should be surprised when it swings back.
I won’t be.
But apparently, the recent rightward tilt of the Court has raised the hackles of some members of Congress. In 2021 and 2023, Democrats in both chambers introduced legislation to expand the number of justices from nine to thirteen. Leading the charge were Senator Ed Markey of Massachusetts and Representatives Jerry Nadler and Hank Johnson, flanked by the usual squad of progressive firebrands—Alexandria Ocasio-Cortez, Ilhan Omar, Pramila Jayapal, and others who’ve never met a political norm they didn’t want to smash in the name of saving democracy.
The justification? That the Court had become “illegitimate” after Republicans, in admittedly acrobatic fashion, blocked Merrick Garland in 2016 and then fast-tracked Amy Coney Barrett in 2020. Two legislative strategies that would have been perfectly acceptable had they been utilized by the left.
But as with most righteous outrage in Washington, the moral urgency appears to have been tied directly to the political winds. Once Republicans reclaimed control of the House and began inching their way back into broader power, the calls to "restore balance" to the Court went suspiciously quiet. Nobody’s currently pushing for emergency expansions.
The Judiciary Act of 2023 has vanished from headlines, and not even the Twitter feeds of the loudest crusaders still echo with #ExpandTheCourt. It’s almost as if the real goal wasn’t judicial fairness or institutional integrity—but simply to claw back control.
The word cynical is far too noble to ascribe to the motives of these left-wing politicians. An attempt by imbeciles to raise money and votes from their even stupider base is closer—but still falls short.
It’s almost like how I’m never happy unless my beloved Phillies are up 15 to nothing over the Mets in the first inning. You know, integrity of the game, and all that.
Real Reform, Not Rhetoric
And yet, here I remain: the lone court-packer.
Let me explain.
Up until the mid-1980s, the Supreme Court heard and decided roughly 150 cases each term. That number has been dropping ever since. In recent years, the Court often decides fewer than 80. That’s a decline of nearly fifty percent.
All this while the lower courts are drowning.
While definitive numbers are elusive, federal district courts handled somewhere around 250,000 cases annually in the mid-1980s. By 2023, that figure had climbed past 340,000. Surely the number of appealable issues hasn't declined. But the Supreme Court’s caseload? Nearly halved.
Advocates of government often insist that every society requires a “final authority”—a place where disputes can ultimately be settled. I’ve always found this idea vaguely theological, not unlike the First Mover argument for the existence of God: “Everything needs a cause, therefore God.”
But if everything needs a cause, who caused God?
Likewise: “Society needs a final authority.” Fine. But who holds that authority accountable?
Still, let’s grant the premise. Let’s assume human nature is such that a court of last resort serves the public good.
If so, can we at least agree that maybe—just maybe—that court ought to do some work? Resolve some disputes? Decide some cases?
Here’s what I propose: Expand the Supreme Court. Not to 10 or 11. Let’s think bigger. The math works for 15 or 21. Personally, I like 21.
Here’s how we do it: The president nominates one justice at the start of every new Congress—one every two years—regardless of vacancies. Over time, the Court will grow gradually. It would take 24 years to reach full strength. In the meantime, yes, presidential politics would become even more fixated on the Court. Campaigns would grow louder. The Judiciary would get dragged through the mud. But that disillusionment, I suspect, would be temporary. And every faction would have its turn.
A Court That Works
I propose one more change—less structural, more functional: increase the Court’s capacity through rotation.
Each case would be heard by a random panel of three justices, selected from the full Court. Their decision would carry the same legal weight as a full-court ruling does today.
If either party objects, they could appeal for an en banc review. The full Court would then decide—at its discretion—whether to rehear the case. If it declined the appeal, the ruling of the panel would stand. It would be the ruling of the Supreme Court of the United States.
This is not unlike how the Federal Appeals Courts work now. And that is a system that works perfectly well.
But there would be additional benefits to such a system.
First, the Court could take on many more cases. Those genuine, unresolved disputes that naturally occur would be more likely to get resolved. And that is, after all, the mission of the Judiciary.
Beyond that, no single case would take on the significance many cases have now. I think the Court would be perceived more as a working court, and less as an ideological and cultural Thunderdome. A fight to the death.
With twenty-one justices, the political influence of any one judge would be dramatically reduced. Indeed, the justices and the Court would become decidedly less political. There would be far less pressure on them to carry out the wishes of the political base they’re identified with. I suspect decisions would turn less on ideology—and that would be a step forward. The random selection of justices for any particular case would dramatically lower the temperature. In our political discourse.
Advocating for packing the Court because it is seen as a path to an increase in political power—at least over the short term—is stupid. Another argument against politicians and politics.
But giving the judicial branch the resources to handle the controversies and conflict of our modern world makes total sense.
Therefore, the odds that my ideas are implemented?
ZERO.