But it was also a Magic 8-Ball court, because that was Kennedy, too. It was a conservative court, because Kennedy was conservative. Obviously this is a silly proposal for an amendment to the Constitution, but it’s useful as a toy model of what we’ve been living with for several terms. And yet you give Presidents some power to tilt the court their way. In this way we can have a court that is split – enough so that both sides can have some hope for victory. We just stick a Post-It on the ball that says either ‘liberal’ or ‘conservative’. You might think this means we have to change the existing Magic 8-Ball design but we don’t. BUT (this is important!), if the current Magic 8-Ball is liberal-tilted (10 liberal ‘yes’es 5 hazy ‘maybe’s 5 conservative ‘no’s) then, in the case of a fresh Democratic appointment under a Republican, the Republican President also gets to swap in a conservative-tilted Magic 8-Ball. If a liberal retires under a Republican, then the Democrats in the Senate (let’s say) get to nominate a replacement. If there is a conservative retirement under a Republican President, the President appoints a conservative replacement. ‘reply hazy, try again’, you write an Kennedy-esque opinion that kicks it back to the lower courts. If it says ‘my reply is no’ then it is more one of those ‘living Constitution’ pragmatic affairs. If it says ‘my sources say no’ then the petitioner loses, with lots of black letter explanation for the loss. If it’s only ‘signs point to yes’, you write it up as a narrow decision. For example, if its deciding vote is ‘definitely yes’ the petitioner wins and it’s one of those big, consequential decisions. Then an opinion is written in accord with what it says. But, if there is a 4-4 partisan split, the ball decides. You cobble together a majority by other means. In many cases the ball will not need to be consulted. The 9th justice will be, literally, a Magic 8-Ball. Let Republicans appoint 4 justices and Democrats appoint 4 justices.
Thus, the following would be one way to keep the Supreme Court above the partisan fray, post-Kennedy, while acknowledging the power of partisanship, and according the sitting President a certain privilege when it comes to determining the make-up of the court. Half the time a rock-ribbed conservative, but half the time either liberal or hazy. The Magic 8-Ball has 20 possible responses: 10 positive, 5 hazy or non-commital, 5 negative. In some cases it may be due to insufficient familiarity with a children’s toy. In some cases this may by due to infirm powers of reading or reasoning in other cases, to ignorance of the law, or of recent legal history. Some readers are failing to appreciate the aptness of my Kennedy-as-Magic-8-Ball analogy.
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