Noted constitutional scholar Edwin Chemerinsky recommends enlarging the Supreme Court if the Republicans push through a replacement for Ruth Bader Ginsburg. He suggests thirteen justices as an appropriate size. Others have also proposed packing the court. Others argue that this is a terrible idea that would destroy the independence of the judiciary.
I’d like to suggest an alternative that’s less drastic but could accomplish the same thing (at least in the short term) with less damage to the judiciary as an institution: senior status. Under current law, when federal judges reach the age of 65 and the sum of their age and number of years on the bench is 80 or more, they can take senior status. They keep their salary and they continue to hear a reduced number of cases. Supreme Court Justices who take senior status no longer hear SCOTUS cases but continue to serve on Court of Appeals panels. David Souter continues to hear First Circuit cases and Sandra Day O’Connor only stopped hearing cases a few years ago (dementia). Why not allow retired justices to continue to sit on SCOTUS cases as they wish? They would no longer deal with cert petitions or serve as circuit justices (which should greatly reduce their workload). I imagine that Breyer would take senior status and continue to hear cases along with his replacement. Justice Sotomayor is also eligible for senior status. Perhaps Justices Souter and/or Kennedy would decide to come back for some cases. Right now, senior judges are assigned to cases by the Chief Justice. Obviously, that wouldn’t do. So I propose that once the Supreme Court grants cert to a case, senior justices would have, say, fifteen days to inform the court that they will be participating in that case. The result would be to blunt the conservative’s current edge on the court without invoking quite the controversy that packing the court would.