Court-packing is back. Or is it? Perhaps cheap talk is merely taking on yet another guise. After an engaging argument on this topic, law professor Ilya Somin has hammered out the following bet with my son, Aidan Caplan. While most observers would take a Somin’s side on credentials alone, bear in mind that Aidan has earned 5’s on both the U.S. History and U.S. Government Advanced Placement tests. Though he just finished 9th-grade, the contest is not as unequal as it seems.
In any case, here are the terms of the bet – written by Ilya, and accepted by Aidan:
To win, I bet, at 7-1 odds favoring me, that the Court will be packed within 10 years. I put up $10 against his $70. I win if by July 4, 2028, the Supreme Court is legally authorized to have 10 or more justices. Otherwise Aidan wins. I agree he wins if it has gone up from 9 to 10 or more between now and 2028, but it has been cut back to 9 by 2028.
Somin adds: “And I actually hope there will NOT be any court-packing in the next 10 years.”
READER COMMENTS
Jon Murphy
Jul 10 2018 at 10:27am
Can we be a bit more clear on the terms? Is there currently no legal prohibition on more than 9 justices? I was under the impression the 9 number came from tradition rather than legal rules.
mobile
Jul 10 2018 at 10:40am
The Judiciary Act of 1869 set the size of the Supreme Court to 9. FDR was never successful enacting legislation that changed this number, but he was successful in staying in office long enough to appoint 8 of the 9 Justices on the Court.
Jon Murphy
Jul 10 2018 at 10:46am
Thank you!
Benji
Jul 10 2018 at 12:28pm
Good to see bets against significant changes to the status quo become a Caplan family tradition – hopefully, Aidan is right!
robc
Jul 10 2018 at 1:53pm
Should the phrase “or less” be added between “to 9” and “by 2028”.
If it expanded to 11 and then was cut to 7, I wouldn’t want Ilya squirming out on a technicality.
Alan
Jul 13 2018 at 8:19am
“or fewer” 😉
Jeremy N
Jul 10 2018 at 2:29pm
I’m trying to think of ambiguous endings to avoid the France terrorism fiasco. Have they considered an arbiter?
I was wondering what happens if there’s legal authorization but no actual packing; the terms of the agreement seem to be on authorization not actual number of judges so that doesn’t seem to be an issue.
Any other ideas? I’ll keep at it myself.
Mark Z
Jul 10 2018 at 9:47pm
Currently, I think it’s just fantasy. If, however, Trump (or, less likely, another Republican president after 2020) and a still-Republican-controlled senate gets the chance to replace both Ginsberg and Breyer, I think a lot of politicians will start to seriously consider it.
Thomas Sewell
Jul 12 2018 at 12:06am
It always amazes me when people come out in favor giving part of the government more power (President+Senate to pack court by appointing more Justices) while at the same time protesting vehemently about that exact same part of the government currently exercising that power.
Personally, I’d hope we could start by dividing and increasing the total number of Justices in something like the 9th circuit for real life efficiency reasons, then after President Trump appoints all those Judges and gets them confirmed, they can come back to wanting to let the President appoint more SCOTUS members…
I mean, surely this isn’t all just politically motivated, like fundraising warning letters where they forgot to substitute in the name of the Justice they were railing against?
Matthias Goergens
Jul 17 2018 at 2:10am
It seems a fairly clear cut question to evaluate, but you should nevertheless add a clause about arbitration in case the participants to the bet can’t make up their minds about who won.
Comments are closed.