The Nineteen Member Court: The Case For Expanding The United States Supreme Court

Below is today’s column in The Washington Post Sunday Outlook. Due to the normal space restraints, the original article had to be cut down. Given the high number of comments and questions about the proposal (which I first made years ago) for the expansion of the Supreme Court, I have posted the longer, original piece. That longer version addresses some of the questions raised by readers.

_____________________________________________
It could all be in the hands of just one justice. After a 14-month fight in Congress and an unprecedented challenge by states to the power of the federal government, the fate of health care in this country is likely to be decided by a 5-4 vote.

The same may be true when the court rules on Arizona’s immigration law and a sweeping free speech case.

As speculation and anxiety grow over these cases, Justice Ruth Bader Ginsburg recently alluded in a speech to “sharp disagreement” in the Supreme Court’s outstanding opinions, while saying that “those who know don’t talk, and those who talk don’t know.”

It’s not terribly productive to try to guess how the court will rule in these cases — we’ll find out soon enough. It’s far more important to ask whether “those who know” are too few and whether “those who don’t know” should demand to reform the court.

The power of the Supreme Court will always be controversial because of the fact that the justices are the final word in legal disputes. Justice Robert Jackson wrote in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” An individual’s view of the court can depend on whose ox is being gored by its decisions; a “judicial activist” is often just a jurist who doesn’t do what you want. Any Supreme Court of any size will always render unpopular decisions. It is supposed to. Federal judges are given life tenure to insulate them from public opinion, so they can protect minority interests and basic liberties.

But how many people should it take to come up with the final word on such questions? Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws. The deep respect for the Supreme Court as an institution often blinds us to its flaws, the greatest of which is that it is demonstrably too small. Nine members is one of the worst numbers you could pick — and it’s certainly not what the founders chose. The Constitution does not specify the number of justices, and the court’s size has fluctuated through the years. It’s time for it to change again.

A national poll this month showed that the public overwhelmingly opposes how the court functions. Only 44 percent of citizens approved of how the court is doing its job, and 60 percent thought that appointing Supreme Court justices for life is a “bad thing” because it “gives them too much power.”

Many people started looking critically at the court’s structure after the Bush v. Gore decision in 2000 — and the power that case gave to just five unelected individuals. One of the most disturbing aspects of the case was not simply that some justices appeared to depart from prior legal views but that the court insisted that its opinion could not be used as precedent and was “limited to the present circumstances.” Five justices did not want their reasoning used for anything other than selecting the next president of the United States.

The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt. As it is today, the country in 1937 was in the midst of an economic crisis, and Roosevelt was saddled with four conservative justices — known as the “Four Horsemen” — who opposed his New Deal. Three justices, called the “Three Musketeers,” were predictably liberal but could not carry the day against the Four Horsemen and Associate Justice Owen Roberts, who was often a swing vote.

Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices. This could have led to a real crisis. But disaster was averted when Roberts voted to support a critical New Deal case and “Horseman” Justice Willis Van Devanter retired — the “switch in time that saved nine” moment for the court. However, Roosevelt may have had the right idea for the wrong reason.

The nine-member court is a product not of some profound debate or study, but pure happenstance. The first Supreme Court had an even more ill-conceived number of justices: six. In fact, when the court first convened in 1790 at the Royal Exchange Building in New York, only two justices were present (fortunately, it had no cases on its docket). After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once “rode circuit” and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added. In 1869, the court happened to have nine members for nine circuits. And that is where its size settled.

Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O’Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy.

Some proposed Supreme Court reforms seek to break justices’ hold by rotating these positions among federal judges, while others call for mandatory retirement dates. But I believe that many of the court’s problems come back to its dysfunctionally small size. This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.

While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Just because we settled on the number 9 arbitrarily does not mean that any number is as good as any other. A court with 19 or so members have been shown to work efficiently where a larger court would likely be unwieldy. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench. Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations. Jurists are often selected because they have never said or written anything remotely provocative or even interesting. Many are chosen precisely because they are relative unknowns — such as O’Connor, David Souter, Clarence Thomas and most recently Elena Kagan. Bypassing clear intellectual leaders in courts, the bar and academia, modern nominees are picked as a type of judicial blind date. The chances that we could have a legal virtuoso such as Louis Brandeis or Joseph Story on the court in the current system are at best accidental.

How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover. This would allow greater variety and a more consistent opportunity for each president to name members to the bench. It would also decrease the importance of individual justices hewing so closely to party lines — potentially allowing nominees with broader experience and ideas.

An expansion might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints from lawyers and judges is that the justices are out of touch with the reality of legal practice. Having a 19-member court would allow two justices to sit on an appellate court each year by designation — and be forced to apply the rulings that the Supreme Court sends down.

We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands. The respect that most of us hold for the court should motivate us, not deter us, from reforming it. Just as the philosopher Jeremy Bentham called for “the greatest good for the greatest number,” sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University, where he teaches a course on the Supreme Court.

Washington Post Sunday June 24, 2012

57 thoughts on “The Nineteen Member Court: The Case For Expanding The United States Supreme Court

  1. Makes logical sense….. It would definitely break some of the dead/grid lock on the courts….. Question, what happens to an new appointment if a present judge sitting on the court retires…..

  2. JT:

    “Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases.”

    *****************************

    You put your finger on the problem but likely not the solution. I think the Justices should be riding the circuits to find out what is going on in the country. Though occasionally they venture out of the beltway, their knowledge of what is going on out there is limited. It’s the age-old problem of giving somebody a robe, telling them they are smarter and better than their fellows, and then setting up an obsequious cadre of ancillaries to do their work and fulfill their every whim. It’s imperialistic, anathematic to a democracy and, as Gibbon told us, it never works.

    As for expanding the Court, I would take no solace from a bad 10-9 decision as I would from a bad 5-4 decision. Regardless of size there are always voting blocks and swing voters. Are 4 or 5 swing votes any more desirable than 1 or 2?

  3. I like the 19 judge idea.

    I understand that is more immediately executable, but I would also try to do away with the “appointment for life,” they would get just as much freedom from an unassailable ten year appointment, and after that a mandatory full-ride (full salary and full benefits) retirement entitlement, regardless of age, and regardless of whether they chose to continue elsewhere as a judge or lawyer or not.

    That is not something we could afford as a young nation, but our population is large enough that it would be a pittance now, and might prevent our laws from being made by people whose life stance on many subjects was solidified sixty or seventy years ago.

    It would also, like elections do for high political office, limit the impact of a bad decision, so you aren’t stuck for fifty years with a bigot on the bench.

    The life appointment just means they cannot be fired, and do not have to worry about their decisions impacting their future earnings capacity (short of actual impeachment). It does not prohibit them from retiring at will and returning to the private sector if that is what they want. If we give the founders the benefit of the doubt and stipulate that those conditions ARE necessary for an independence of mind, then we can now guarantee both of those conditions easily, without a lifetime appointment, and also gain some of the benefit the founders saw in frequent elective office turnover.

  4. Up-front, I must say that this was told to me by an Orthodox Rabbi (Hillel Horowitz) in the 1950s and although he was a scholar and a good person, I do not know the source of this information and cannot provide any citation. This rabbi made “smicha” [rabbinical degree] while earning a bachelors in physics as well, but here goes:

    He said that although the ancient Hebrew law did provide for the death penalty (by STONING!) for many crimes, a person could only be convicted in the following way: Seventeen (17) judges had to hear the case against him (or her) while sitting in a circular arrangement in such a way that each judge could look directly into the eyes of every other single judge, the whole time that they deliberated. ONLY if all 17 agreed on both the guilt and the punishment could the person be executed.

    I don’t know why 17 was the magic number. Perhaps he told me and I forgot it, perhaps he never told me. Perhaps (the worst possible option) I never asked. (I used to have so much respect for teachers and rabbis that I would not ask questions — figure THAT! Now I have so much respect that I ask questions constantly!) ;-)

  5. I find the remarks of lotta on 6/22 and mespo and Tony C today to be most insightful. Changing the number of Justices is a good idea but the change needs to go further.

    “The lack of turnover on a small bench though, as you highlighted well, means the Court is like the Church, always a generation or more behind the times and no incentive to learn anything about anything relevant to the society ever again. The debates by Congress and much of the judiciary regarding copyright and the Internet shows the pitfalls of people in power that don’t understand an issue ruling on it. ” (lotta 6/22 @7:17pm on the Is The Supreme Court Too Small? thread)

    “I think the Justices should be riding the circuits to find out what is going on in the country. Though occasionally they venture out of the beltway, their knowledge of what is going on out there is limited. It’s the age-old problem of giving somebody a robe, telling them they are smarter and better than their fellows, and then setting up an obsequious cadre of ancillaries to do their work and fulfill their every whim. It’s imperialistic, anathematic to a democracy and, as Gibbon told us, it never works.” (mespo today on this thread)

    “I would also try to do away with the “appointment for life,” they would get just as much freedom from an unassailable ten year appointment, and after that a mandatory full-ride (full salary and full benefits) retirement entitlement, regardless of age, and regardless of whether they chose to continue elsewhere as a judge or lawyer or not.” (Tony C today on this thread)

  6. well how realistic is it to expect someone who is a political appointee to NOT be a ‘judicial activist’???

    ad why do we allow our supposedly objective judges to be appointed by politicians anyway?

  7. Woosty,

    Sometimes, when dealing with or reading about the actions of Congress and/or the Supreme Court, I feel that we’re all like that grandmother from up-state New York in that we can do nothing but stare out the bus window hoping that the abuse will end when the sh*t-heads get off the bus.

    Powerless

  8. One of the most disturbing aspects of the case was not simply that some justices appeared to depart from prior legal views but that the court insisted that its opinion could not be used as precedent and was “limited to the present circumstances.” Five justices did not want their reasoning used for anything other than selecting the next president of the United States.
    ===============================

    The ability to make an opinion “unpublished” and to set it down with a caveat (unassailable, unappealable) that it cannot be used for precedent is an indignity that destroys the entire legal process at all levels. It is equivalent == ABSOLUTELY EQUIVALENT == to a bill of attainder, and one that is put into place NOT by a majority in Congress but by one sole possibly demented judge, or three perhaps not-so-wonderful judges or even two out of three of them — or, at the most, by a majority of judges out of nine. We get “private law” all over the country now, law that gets written and then carries the proviso that lawyers CANNOT CITE IT to show how other cases should be decided later. Precedent-less legal actions. Is that democracy? Professor Turley spent years fighting against a single congressional bill that deprived a single oral surgeon of visitation with a single daughter of his for less than a decade because it was a bill of attainder, and THAT one had passed by a majority of elected officials. Yet no group of Constitutional Scholars has, to my knowledge, yet attacked the common practice of issuing opinions from courts affecting plenty of people that effectively equal laws written by single (often incompetent) judges and upheld by their buddies that fly too low for radar in our legal system.

    UNPUBLISHED OPINIONS are tyranny. The fact that they are judicial tyranny rather than legislative tyranny has shielded them from attack so far, because really, nobody can make their next campaign on them. But the law is essentially worthless if it does not set down a standard that can be either used or undone. We the People can think we have some power but at the bottom of it all, where each of us individually lives, we can be disempowered (even to the point of losing the vote, since a convicted felon can lose voting rights and a person can be convicted of a felony by breaking a judge-made law and being tried in that same judge’s court in an unpublished opinion) in a minute for a dollar. Check it out.

  9. Malisha,

    Hmmm … do you feel it? I think you and I just enjoyed a moment of synchronicity or as Jung might say, “A meaningful coincidence of thought.”

  10. i don’t believe it would make any difference. rebublican senators would just block any democratic presidents from appointing any judges.

  11. Blouise, it makes me feel really good that we had that shared space on the big Venn Diagram of the world.

    It took me a long time to figure out what this “non-precedential law” had done, and was doing, to our system. From 1982 until NOW! I kept thinking, “But this can’t be done to me, because if this is done to me, then anything can be done to someone else tomorrow, and ultimately …blah blah blah…and they can’t POSSIBLY let that happen so they HAVE TO correct what they have done to me, because otherwise the whole system will fall.”

    That, it turns out, was a technically psychotic thought.

    Why?

    Do I have delusions of grandeur, to believe that what is done to me is going to set a precedent that powerful people have to either correct, follow or somehow distinguish? Why should I be entitled to that degree of accountability from my government?

    The truth is: What is done to me does NOT have to be followed if, say, a person other than me has a case that a judge other than Bach, Finch or Cacheris chooses to treat in accordance with the law including things like notice and opportunity to be heard. What happens in the one case can just be ignored in the next case because the one case can be “non-precedential.”

    So the laws we followed on the playground: “I can’t let you do that because if I let you do that, I have to let everybody do that.” That’s no longer operable.

    You can have: OK, we’ll do THIS to you but THAT to someone else. And you can’t complain about it because it’s non-precedential. This is not about law; this is just about YOU. And what WE can do to YOU. SEE?

    And at that point, the Constitution is irrelevant.

  12. Errr. I don’t know, but idea of it functioning better could be proven. The problem being is that “we” will game it however it is arranged. Humans are bullies, some of them. My latest rant. Lot’s of smart people here. Even the ones I usually disagree with when they are riding their favorite horse. (käpphäst in swedish)

    OTOTOT

    “This is not about law; this is just about YOU. And what WE can do to YOU. SEE?—-Malisha.

    Well, ask one who’s waiting for one judge to evaluate his case against unwritten laws. Amusing situation.

  13. Since “it is the right thing to do” is all the rage in the WH, I propose that a president can only appoint one judge for each of his term(s). Any others that are needed, would be by popular votes in the House and Senate. Yes, it would be messy, but no president should have too great an influence on our future, let congress in on the act.

  14. Hmmm, I’ll have to think that over, I don’t know if consent is as good as picking an actual Justice.

  15. Pick and pick. They’re doing pretty good now blocking most appointees to whatever Obama sets his name to.
    And that does not depend on his ineffectiveness. It is always there.

    But you do have a point. Putting it up for sale might also be a good idea. Or elections, like many states seem to have.

  16. Everybódy keeps harping on non-elective judges making decisions.

    If we did not have the electoral college system then by popular majority, I believe, Gore would have won.
    Correct?

  17. Switch it around, let congress pick the extra justice and let the president consent, or not. Of course, this would be even messier, but perhaps more indicative of the slant of the country as reflected by their elected representatives.

  18. I was sent this link (http://althouse.blogspot.com/2012/06/dont-like-supreme-courts-decision.html) by one of the regulars on my blog, who was surprised by the personal attack on another law professor’s blog. I was unable to post a response on Althouse for some reason. Just for the record (and can be confirmed with a simple search on the Internet), I have long opposed the health care law on federalism grounds: http://jonathanturley.org/2010/03/31/is-the-individual-mandate-constitutional/ Indeed, my opposition on federalism grounds have been cited by both members of Congress and opponents of the law in prior litigation.

    I have also raised doubts over the claims of the Administration in the immigration case. While that does not fit the narrative of seeking to pack the court due to my unhappiness with its expected decision, I thought it was worth noting.

    Jonathan Turley

  19. I oppose it on the simple grounds that it uses the wrong means to achieve a good goal. And still leaves to large degree at the non-existent mercies of the insurance/medical/pharma industries.
    Hey, a new acronym: IMP, but impish is not fully descriptive.

    Like some others, am proud to share the floor with the honorable gentlemanform Georgtown U.

  20. “who was surprised by the personal attack on another law professor’s blog. I was unable to post a response on Althouse for some reason.”

    ****************************************

    Looks to me that Professor Ann Althouse is still smarting over the 2011 ABA best blawg vote. “Spare [you] the same old bullsh*t”? Really?

    Come on, Ann, it was only about an 80 vote spread and, hey, even Cleveland fans got over LeBron!

    http://www.abajournal.com/blawg100

  21. mespo, maybe it was the part about placing fifth with only two digits in votes that got her knickers in a twist.

    According to the poll, she has only 56 readers who were willing to expend the energy to go vote for her. I don’t think Professor Turley is in any danger of being overtaken by her next year unless she gets PAC funding from ALEC and the Koch Brothers to raise votes. Or maybe she does and that was the best they could do, who knows.

  22. Fair and balanced is a phrase thrown around by the Rupert Murdock press in this country. But the phrase has some relevance here. Four of the current schmucks hail from new york, two from Jersey, one from Georgia, two from California. Almost all are Ivy League. Pass a Constitutional Amendment. Eleven Justices, one from each Circuit and by that hailing from a state from each of the Circuits and by no means only appoint Circuit Judges. We need appointees from state courts. We can use some ex Senators, Governors. We need geographical diversity. This heg fund from NY, New Jersey and Ivy League is narrow minded. Take away their free medical care. Make them buy medical insurance. ScaliaCare does not even give them perspective of what they are about to declare unconsitutional. Mandatory senility tests, drug tests. Retire at 90. No more than 11 on the bench. Make them take CLE courses.

  23. The article affirmatively states that the Court is the final word in legal disputes. Wrong. Congress passed the Civil Rights Act in 1991 to change some of the Cour’s rulings on various civil rights matters. The Court can be the Wrong Word in legal matters such as the ruling in Plessy v. Ferguson.

    The article contends that 19 Justices are better than Nine. That one vote now will determine the ruling on the medical leglistation (Obamacare). But one vote could determine this case if there were 19 justices instead of 9. The could be tied 9 to 9 and one vote chould decide it.

    The article does not get to the heart of the decaying body of Nine that sits there now. Geographical indiversity makes for a myopic, ego centric court. Four of the Justices are from NY state, one from Buffalo and three from NYC. Two more hail from Trenton, New Jersey. So, six of nine are from the area where they know everything. Tirty, turd and a turd. (33rd Street and 3rd Avenue). You have two smug ones from California and one who is unlike the rest of the verbal subway rantors and remains silent during arguments. He hails from Pin Pointe, GA and is what he called himself back in Missouri at the State AG’s Office: Unreconstructed. The Confederate Flag behind his desk on the wall was evidence of his philosophy that the 14th Amendment was a dead letter. His sponsor John Danforth, a liberal sort of RepubliCon compared to today’s breed convinced his Democrat pals in the Senate to overlook such trivialities. But I digress.

    To suggest some reform a Court Packing Plan like FDR’s proposals seems a bit specious. Nineteen is ten too many. After all, they are not overworked. They have June, July, August and part of September to sit home in NY, CA and GA and take it easy. They decide about 70 cases on the merits (where they write opinions). If one divides 80 by 9 that is not too much work for one Justice and his little cabel of law clerks from Ivy League schools.

    The Turley article does not address some of the biggest failings of the present Court. None have in their careers represented a criminal defendant in a capital murder case. None have represented a crimnal defendant in a trial. Few have tried many cases in court and the only court experiecne is as appellate judges, or appellate advocacy, excepting Kagan. The current preference of Presidents to select only sitting judges on the DC Court of Appeals who attended Ivy League schools excludes the likes of a former Senator, from the South, with jury trial experience, with criminal jury trial experiecne for the accused, to be nominated. A guy like Hugo Black for example. None of the sitting Justices measure up to Hugo.

    The present Court gave us Citizens United. Not all voted for it. Stevens is gone and he voted against it and speaks out. Plessy v. Ferguson brought us a Civil War and 600,000 dead. Citzens United will continue us down the road to oligarchy. The guy with the Confederate Flag might as well hoist it in his office once again. This is a sorry arse Court but the Turley article missed some of the big reasons why.

  24. @BarkinDog: You misunderstood the point of 19 instead of 9. Of course with an odd number of judges the decision can be by one vote, but the point is that currently, when we have larger panels of judges, it isn’t the SAME swing vote every time that decides the case. On the Supreme Court with 9, this has been common, that a single “moderate” judge ends up deciding most cases, and that doesn’t change until a judge is changed.

    Larger courts, as we know from looking at their voting records, are less polarized and will break on different lines case by case. Presumably that is because they represent more points of view, and we would expect that to produce more robust decisions because the final vote isn’t always monotonously coming out of the same exact mind, flawed (as every mind is) by its own unique set of biases and emotions that are the residue of one life’s experiences.

    The larger court would make the Supreme Court less a cult of personality of the middle-moderate.

  25. “We need appointees from state courts. We can use some ex Senators, Governors. We need geographical diversity.”

    BarkinDog,

    I must disagree with you, even though you usually make a lot of sense. Part of the reason that we are in this mess is because of diversity in representation from the States. The most reactionary branch of government has been the Constitutional provision mandating two Senator from each State.
    That may have made sense in our early history with the thirteen States because for the main population was roughly equal. However, today a State like North Dakota has equal sway in the Senate with States like Texas, California and New York. If you check the facts these States, particularly in the South wield more power to make deals and to in many cases receive more from the Federal Government then they put in. With Agribusiness dominating farming, to the detriment of the small farmer, we are subsidizing these large corporations through farm subsidies, that we can’t get rid of because of the Senate representation system.

    SCOTUS justices are being confirmed by a Senate that does reflect the country’s diversity and rather gaining the geographical diversity on the court, the confirmation votes are to my memory always the compromises made to bow to competing political philosophies. Beyond that though there is an implication in what you write that does indicate a little cultural bias on your part. I’m from New York, born and bred and lived my whole life there until age 62. While there exists the hint of my Brooklyn background in my speech inflection I can ensure you that I’m not a “Dese, Dem and Dose” guy orally. Neither were my parents, who were children of immigrants and scholastically not well educated. Very few people with that kind of accent exist nowadays.
    this is true also of other ethnicities than mine, including the oft maligned Latinos.

    I might draw a further assumption from your writing, please correct me if I’m wrong because I’m not attacking you, rather I’m trying to discuss your comments and see where we might agree since we often do agree on much. That further assumption though is that you somehow think that the people of middle America are more representative of this country. I don’t think that history quite bears that out. My view is that despite my being a second generation immigrant, Jewish, New Yorker, my cultural outlook and perspective are as American as anyone born in let’s say Iowa, or Missouri, perhaps more so. I can say this from experience because I have spent significant time in 44 of the 48 States (actually contiguous) through extended road trips, over many years. My experiences in all those States has been positive, but in conversations with many people I found regional biases that were unfounded.

    Finally, your point is well taken about the fact that certain law schools seem to be the “gold” standard for being appointed to the court, particularly Harvard and Yale. Both those schools in my opinion are bastions of the Elite of our country and shouldn’t be given the deference they receive. From my own Jewish perspective for many years both Harvard and Yale had explicit anti-Jewish quota policies. However, if you juxtapose their educational perspective with let’s say Liberty Law School, the perhaps they look much better. I do think you went somewhat overboard in general with some of your examples and touched on the nub of your own regional biases. The need is for SCOTUS jurists who are not political partisans, but fair minded Jurists with the interests of all the people at heart. That’s how Earl Warren, a former Republican Governor was and also William O. Douglas, who was as you allude a former Klan member, rolled.

  26. The Supreme Court reversed a decision by a Montana court supporting a state anti-corruption law passed in 1912 that prohibited corporate influence in state elections, reaffiriming that their Citizens United decision invalidates such restrictions. Montana, supported by 22 states and Sens. John McCain (R-AZ) and Sheldon Whitehouse (D-RI), had argued that their law should be allowed to stand because of the state’s unique history of corruption around its mining industry, which led to its passage by referendum. The court ruled against them 5-4, the same majority that determined Citizens United.

  27. MikeS,

    Does any jurist stand the test. Does any man? I wonder+

    You mention Earl Warren as a positive example.

    Here is a story with regard to him. Truth or source I know not. We can deny it credibility just on that basis.

    The story claims that Warren had refused LBJ’s request to head the JFK Assassination Commission.

    Then LBJ referred to information they (FBI?) had on Warren as to his involvement in an incident in Brazil

    and a young girl. Warrens is said to have fallen apart and said to LBJ, in effectL “I’ll do anything you want.”

    It is troubling information. That they play very rough in the kitchen is known. The famous three K’s witness on that.

    Any light to be cast?

  28. Not necessarily…….. but I don’t believe that “corporations are people” either. Do you?

  29. Nah, I’d love to see Santa Clara County v. Southern Pacific Railroad overturned, but it’s fun to see you can’t admit you favor States’ Rights on occasions, because we all know only violent teatards support States’ Rights and never liberals (gay marriage, medical marijuana, …)

  30. anon, ah, but SCC v SPR really didn’t argue the issue nor was there a decision in regard to the issue. It’s just been presented to us as if it were.

  31. “anon, ah, but SCC v SPR really didn’t argue the issue nor was there a decision in regard to the issue. It’s just been presented to us as if it were.”

    I understand that too. But how would you rephrase that that clerk’s writing and its impact needs to be tossed out?

  32. “Does any jurist stand the test. Does any man?”

    ID707,

    Why do you think I write of my dislike of political purity. There are few heroes and many skeleton’s in almost every ones closet. If a person can do the “right thing” 80% of the time then they’re probably a good human being, given that the 20% wrong is not evilly wrong.

  33. The best way to understand if a given issue is not really being dealt with, is when supposedly “uber-issues” like “States Rights” become buzz words as pints of argument. There are no overriding, one size fits all principles except for treat others as you would be treated. Everything is is merely open for discussion.

  34. MikeS,

    Don’t like to take issue with you, but—-you said:

    ““Does any jurist stand the test. Does any man?”
    ID707,
    Why do you think I write of my dislike of political
    purity.”

  35. There it did it again. Don’t touch the CR key.

    Anyway to continue the discussion.

    You seem to assume that I understand what you mean by political purity. I mean that you think that I SHOULD understand it as YOU understand it. I have in fact never seen the concept before you used it here.

    Now does that make me inellgible to be here. I don’t think it does. But I have seen you use it several times when berating what’s her name.
    You accuse her for her willingness to sacrifice practical results for the sake of being true to ideology….or something like that. That she would sacrifice Obama for the sake of being politically pure.

    The point being—-words shift in meaning and connotation from person to person and time to time. We are not issued with a standard dictionary, which is updated for all of us automatically in our minds.

    That is why we often use more words and concepts to reach a mutual agreement on what we disagree about.

    Someone mentioned the Chinese, meaning that their language would prevent it becoming a lingua franca.
    More can be added. Very often a word is spoken, followed by a word which clarifies the meaning of the first word. Very common.

    I say this asking you to reflect on it when others don’t grasp your “obvious” meaning of what you say.

    And if by not mentioning the main “practical” point expressed by Warren’s corruption by LBJ, you would imply it is not worth mention, then that is a weak argument.

    Finally to use your 80 vs 20 analogy: Then what would we have Warren to include in the “correct” 80 per cent of the decisions. He obviously failed to do so in the case of JFK’s assassination. As Congress itself has opined after later investigations of its own. So, there is more to it than a facile 80 vs 20 argument makes.

  36. @Mike: There are no overriding, one size fits all principles except for treat others as you would be treated.

    Unless one is suicidal or a masochist that is sexually excited by the thought of being violently raped. Oh wait… one size does not exactly fit all…
    :-)

  37. “Now does that make me inellgible to be here. I don’t think it does. But I have seen you use it several times when berating what’s her name. You accuse her for her willingness to sacrifice practical results for the sake of being true to ideology….or something like that.”

    ID707,

    So am I to take it that in your usually irascible fashion you are looking to start an argument with me? When have I ever said, or implied that either you or Jill is “ineligible” to be here? Now interestingly, I happened to write a blog some weeks back that was the most commented on block that I’ve written here apparently you never read it, since you didn’t make one of the 694 comments.
    The title was: The Pursuit of Political Purity. I’m providing the link for you.

    http://jonathanturley.org/2012/06/02/the-pursuit-of-political-purity/

    Since you wrote this:

    “You seem to assume that I understand what you mean by political purity. I mean that you think that I SHOULD understand it as YOU understand it. I have in fact never seen the concept before you used it here.”

    Now you can understand, whether you agree or not, what I mean by political purity.

  38. MikeS,

    By your reasoning, since you have published a blog here on the subject of political purity, then the world is thereby fully informed.

    You assume that by publishing it, that I should be informed and thus worth berating for not understanding—–for that is what you did to me, as you so like to do
    If my reasoning arguments with no ad homenim attacks is irascible is for others to judge. You seem to think so.

    “So am I to take it that in your usually irascible fashion you are looking to start an argument with me?”

    Attaboy, just the way to meet a reasoned argument from my side.

    Pick out an irascible phrase and we can discuss it.

    As for your saying that I don’t qualify being here if I don’t know what “political purity” is, was of course meant to highlight the expectation that I and the rest of the world should know what MikeS meant by the term.
    How silly of course. That was the point, did you not get it?

    That, in essence, is the whole point. If you are irritated over something, then aay what it is, and don’t hide behind showing irritation at someone not sharing the same concepts as you.

    Just because you are a guest blogger does not mean you are perfect and every word holy testament. Your excrement smells no sweeter than anothers, no matter if written or extruded the usual way.

    I am doubtful if I shall read your blog which you link to.
    You have become heavily pontifical lately in your writings, and full of self-references. Bestowing your finger wavings at those you find new and malleable. And that can be called an opinion, and freely admissible here. Irascible, not at all, free from rancor. An honesr opinion, if not a positive one.

    You, once while giving me an unmerited beating, gave me the rose of saying that you had thought that I could contribute by my being from another part of the world. Well, that has consequences. I said from the beginning that I am not familiar with your world there.

    But I don’t and will not plead that defense anymore.

    It is you who make unreasonable demands on others—-however many comments you reaped at our blog. This ain’t the NYTimes you are publishing an OpEd at.

    And JT has not said you were assigned reading. Or?

    So keep on looking for the world to have a dictionary of political terms congruent with your personal meaning—it will be a long wait.

    PS Ev. replies tomorrow. It’s soon 2 AM here. Bedtime.

  39. ID707,

    Sometimes you are an ass taking umbrage where none was given and playing victim when you are the attacker. Show me where I berated you because not only do I think I didn’t, but also nothing you had said offended me. You berating me for not clarifying what I meant by political purity and I obliged with a link.

    You’re merely playing your tired old game with your pretense of being attacked and faux victimization. I’m distraught that you find my writing pontifical, or is it merely me that disturbs you? If so, I assure you that despite your discomfort, I’ll do my best to carry on without your respect. So chastened am I by your words that I think it best for me to just ignore you and therein you can declare victimhood and victory simultaneously.

  40. MikeS,

    Not liking to depart from an encounter with you which ends in recriminating words. let me take the initiative to copy and paste our words, completely from the sequence.

    Then we can get a better overview and perhaps reach a more pleasant conclusion. As I am hoping that a relation, without suspicions of foul intent as soon as one of us addressses the other, is possible. If the starting point is wrong, feel free to correct it.
    ——————————————

    idealist707
    1, June 25, 2012 at 1:14 pm
    MikeS,

    Does any jurist stand the test. Does any man? I wonder+

    You mention Earl Warren as a positive example.

    Here is a story with regard to him. Truth or source I know not. We can deny it credibility just on that basis.

    The story claims that Warren had refused LBJ’s request to head the JFK Assassination Commission.

    Then LBJ referred to information they (FBI?) had on Warren as to his involvement in an incident in Brazil

    and a young girl. Warrens is said to have fallen apart and said to LBJ, in effectL “I’ll do anything you want.”

    It is troubling information. That they play very rough in the kitchen is known. The famous three K’s witness on that.

    Any light to be cast?

    ———————————————————

    40 Mike Spindell
    1, June 25, 2012 at 3:18 pm
    “Does any jurist stand the test. Does any man?”

    ID707,

    Why do you think I write of my dislike of political purity. There are few heroes and many skeleton’s in almost every ones closet. If a person can do the “right thing” 80% of the time then they’re probably a good human being, given that the 20% wrong is not evilly wrong.
    ========================================================

    idealist707
    1, June 25, 2012 at 3:36 pm
    MikeS,

    Don’t like to take issue with you, but—-you said:

    ““Does any jurist stand the test. Does any man?”
    ID707,
    Why do you think I write of my dislike of political
    purity.”
    ===============tehnical interruption on ID side==========

    43 idealist707
    1, June 25, 2012 at 4:01 pm
    There it did it again. Don’t touch the CR key.

    Anyway to continue the discussion.

    You seem to assume that I understand what you mean by political purity. I mean that you think that I SHOULD understand it as YOU understand it. I have in fact never seen the concept before you used it here.

    Now does that make me inellgible to be here. I don’t think it does. But I have seen you use it several times when berating what’s her name.
    You accuse her for her willingness to sacrifice practical results for the sake of being true to ideology….or something like that. That she would sacrifice Obama for the sake of being politically pure.

    The point being—-words shift in meaning and connotation from person to person and time to time. We are not issued with a standard dictionary, which is updated for all of us automatically in our minds.

    That is why we often use more words and concepts to reach a mutual agreement on what we disagree about.

    Someone mentioned the Chinese, meaning that their language would prevent it becoming a lingua franca.
    More can be added. Very often a word is spoken, followed by a word which clarifies the meaning of the first word. Very common.

    I say this asking you to reflect on it when others don’t grasp your “obvious” meaning of what you say.

    And if by not mentioning the main “practical” point expressed by Warren’s corruption by LBJ, you would imply it is not worth mention, then that is a weak argument.

    Finally to use your 80 vs 20 analogy: Then what would we have Warren to include in the “correct” 80 per cent of the decisions. He obviously failed to do so in the case of JFK’s assassination. As Congress itself has opined after later investigations of its own. So, there is more to it than a facile 80 vs 20 argument makes.
    =======================================================

    45 Mike Spindell
    1, June 25, 2012 at 7:15 pm
    “Now does that make me inellgible to be here. I don’t think it does. But I have seen you use it several times when berating what’s her name. You accuse her for her willingness to sacrifice practical results for the sake of being true to ideology….or something like that.”

    ID707,

    So am I to take it that in your usually irascible fashion you are looking to start an argument with me? When have I ever said, or implied that either you or Jill is “ineligible” to be here? Now interestingly, I happened to write a blog some weeks back that was the most commented on block that I’ve written here apparently you never read it, since you didn’t make one of the 694 comments.
    The title was: The Pursuit of Political Purity. I’m providing the link for you.

    http://jonathanturley.org/2012/06/02/the-pursuit-of-political-purity/

    Since you wrote this:

    “You seem to assume that I understand what you mean by political purity. I mean that you think that I SHOULD understand it as YOU understand it. I have in fact never seen the concept before you used it here.”

    Now you can understand, whether you agree or not, what I mean by political purity.
    =========================================================

    46 idealist707
    1, June 25, 2012 at 7:51 pm
    MikeS,

    By your reasoning, since you have published a blog here on the subject of political purity, then the world is thereby fully informed.

    You assume that by publishing it, that I should be informed and thus worth berating for not understanding—–for that is what you did to me, as you so like to do
    If my reasoning arguments with no ad homenim attacks is irascible is for others to judge. You seem to think so.

    “So am I to take it that in your usually irascible fashion you are looking to start an argument with me?”

    Attaboy, just the way to meet a reasoned argument from my side.

    Pick out an irascible phrase and we can discuss it.

    As for your saying that I don’t qualify being here if I don’t know what “political purity” is, was of course meant to highlight the expectation that I and the rest of the world should know what MikeS meant by the term.
    How silly of course. That was the point, did you not get it?

    That, in essence, is the whole point. If you are irritated over something, then aay what it is, and don’t hide behind showing irritation at someone not sharing the same concepts as you.

    Just because you are a guest blogger does not mean you are perfect and every word holy testament. Your excrement smells no sweeter than anothers, no matter if written or extruded the usual way.

    I am doubtful if I shall read your blog which you link to.
    You have become heavily pontifical lately in your writings, and full of self-references. Bestowing your finger wavings at those you find new and malleable. And that can be called an opinion, and freely admissible here. Irascible, not at all, free from rancor. An honesr opinion, if not a positive one.

    You, once while giving me an unmerited beating, gave me the rose of saying that you had thought that I could contribute by my being from another part of the world. Well, that has consequences. I said from the beginning that I am not familiar with your world there.

    But I don’t and will not plead that defense anymore.

    It is you who make unreasonable demands on others—-however many comments you reaped at our blog. This ain’t the NYTimes you are publishing an OpEd at.

    And JT has not said you were assigned reading. Or?

    So keep on looking for the world to have a dictionary of political terms congruent with your personal meaning—it will be a long wait.

    PS Ev. replies tomorrow. It’s soon 2 AM here. Bedtime.
    ========================================================

    Mike Spindell
    1, June 26, 2012 at 12:04 am
    ID707,

    Sometimes you are an ass taking umbrage where none was given and playing victim when you are the attacker. Show me where I berated you because not only do I think I didn’t, but also nothing you had said offended me. You berating me for not clarifying what I meant by political purity and I obliged with a link.

    You’re merely playing your tired old game with your pretense of being attacked and faux victimization. I’m distraught that you find my writing pontifical, or is it merely me that disturbs you? If so, I assure you that despite your discomfort, I’ll do my best to carry on without your respect. So chastened am I by your words that I think it best for me to just ignore you and therein you can declare victimhood and victory simultaneously.
    =======================================================
    END QUOTES,

    MikeS,

    Not to say you started it, but you were the one who used “usual irascible” to describe me, and questioned whether I was looking for a fight with you; then perhaps you would be so kind as to explain why you expressed those judgements. If you feel inclined to do otherwise is up to you, or course.

    I hope for an answer.

  41. ID7,

    FWIW, I find you well meaning, though sometimes clueless, and so sometimes we disagree.

    Mike though is a swindler. He’ll tell you he is independent of thought, but he really is a party bully, even as he may claim he dislikes party purity drives.

    It’s total bullshit.

    If Mike has any honesty, he’ll acknowledge the number of times he claims for himself to be an iconoclast and not a member of any party and yet the times he demands I out myself as a right wing conservative because I disagree with his view of Democratic politics.

    In that sense Mike is dishonest like so many here so your cause to join with him while noble is futile.

    The dude is a piece of work. He’s a mental the rapist after all.

  42. Well, there are many top dogs here who hang in a well-defined pack. I DEFINITELY do not have any ambitions to smell hind ends there, as some do or to urinate in obeisive salutation when they approach.

    However, I see no need to ignore the things to which I take an opposing or questioning view so as to maintain harmony and quiet. Not even if it results in bully attacks.

    I try now to see if by rational discussion if we can avoid the raising of hackles when we “meet”.

    After this short time and the eventual impediment I have in reading people, it is quite apparent that many people here have blind spots, emotionally based bias, and are very attached to their selfimages and the promotion of them.

    Like myself as well.

    BTW, thanks so much for the sunscreen info.
    But jokingly, as some would reply—-“We know EPA is a communist liberal front organization run by gays and immigrants.”

    Thanks for what I take as encouragement.

    Clueless? Oh definitely, and even constantly. Forty-four years speaking and living exclusively Swedish does not enable one to understand your society when re-exposed to it. I did not have any contacts with Americans here or at home during my time here. That’s how it was.

  43. “Mike though is a swindler. He’ll tell you he is independent of thought, but he really is a party bully, even as he may claim he dislikes party purity drives.”

    Anon,

    I’d rather be a “swindler” than an unfulfilled misogynist any day.

  44. “Anon needs to take another very long trip to Las Vegas.”

    SwM,

    Never having availed myself of professional sex services, or even having been to a strip club, I can only speculate how Anon gets fulfilled with his hatred of women so out front, but then he is not someone I want to waste much thought on.

  45. MikeS,

    “ID707,

    Your own words prove my point. Ta, Ta.” MikeS———

    You don’t bother arguing, then no reason for me to either. Same phrase back at you: Your own words prove my points. The Ta, Ta, you can keep for your own use.

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