The Constitution is a Living Document, NOT a Sacred Document

Someone responded to the post I made the other day suggesting the Supreme Court be expanded to 15 justices in order to ensure that neither political party would be able to drastically shift the court’s philosophy due to the happenstance of several vacancies opening on the court within a single administration.

Here is her comment, followed by my response:

“Too many cooks spoil the broth.

They are not judging politics or feelings. They are judging to see if the laws are Constitutional. If the congress wants to change the constitution they can call a Constitutional convention.”

My response:

If judges were thinking machines instead of people, they would simple parse the constitution and apply it.

But, the constitution contains both denotation and connotation. It represents not only the letter of the law but the intent of the framers.

In fact, that intent is often unclear and must be interpreted. This is due not so much to obscure communication in the document but to conflicts and compromises of the framers themselves.

This is why the constitution makes allowance within its own text to be amended and updated into the future as the nation evolved.

And so, even if you put aside politics and feelings, there is both the binary logic of the constitution and the intuitive interpretation of the intent.

Our political parties are built around different intuitive interpretations: two different beliefs in what the American Ideal is, just as the framers disagreed in that same respect.

Which interpretation is correct? Both? Neither?

Regardless, when a party approves a justice for the Supreme Court, they understand that any competent judge can handle the legal elements of a decision. It is the interpretive philosophy that determines who a party supports to fill a vacant seat.

If this were not true, then one could expect Barrett to make exactly the same decisions as Ginsberg. And one would also assume there were never be any dissenting opinions on the court. And then if would follow that we really only need one justice, since every one of them would agree based on the letter of the law.

But that is not the case. The supreme court is often split and seldom unanimous. And so, despite the desire for a utopian world in which the judges are unbiased, in reality they still must interpret and do so according to their philosophical perspective, which mirrors the party that nominated them.

Having more judges does not make decisions carry any less the weight of law. It matters not if the justices decide 5 to 4, 7 to 2, or 12 to 3. The decision is the decision. So, more cooks do not spoil the broth. If anything, more justices provide more variance within each philosophy that can lead to more considered opinions by the court.

And, with the approach I recommended. It will ensure that the court’s overall philosophy changes more slowly, with changes in society, rather than whiplashing from one philosophy to the other whenever several deaths on the bench occur within a single administration.