This week, the South Koreans decided to expand their Supreme Court to 14 members. The news should get Americans to consider whether it is time for our own undersized Court to expand from 9 to 19.
The South Koreans voted to expand their Supreme Court, as detailed in this article
I have long argued that our Supreme Court is facially undersized and would serve the nation better if expanded to 19 members. For that column, click here
The Nine Nations of North America is a book written in 1981 by Joel Garreau. Joel Garreau is a senior writer for The Washington Post in Washington DC and a regular contributor to the International Forum of the University of Pennsylvania’s innovative Wharton Business School, briefing top executives from Korea to Sweden. Joel had noticed in conversations with fellow journalists throughout the nation that they could relate to the US as distinctive regions. It is interesting that the number “Nine” is used in regards to the nation. Perhaps the US Circuit Courts of Appeals could be reduced back to “Nine” so that no US Supreme Court justice would have to be assigned more than one circuit as is now needed to be done. For instance John Stevens reigns over both the 6th and 7th US Courts of Appeals and David Souter was assigned both the 1st and 3rd Courts of Appeals. Then there is the Chief Justice who assigns himself the 4th, the DC and the Federal US Courts of Appeals. In order to change that the nation would have to be subdivided into 7 regions so that the DC and Federal Courts can be covered. There are actually 13 US Courts of Appeals which might require 13 justices if we had followed the tradition of George Washington, Thomas Jefferson and John Adams. Of course once there were 2 Supreme Court justices assigned to “ride circuit” per each circuit. If that tradition had been followed we would now have 26 Supreme Court justices. Wow! We could just assign associate justices to just the “numbered” circuits which only cover actual land mass regions of the nation. DC is an anomally in that respect. If DC were to be made the 51st state then that court would be abolished and blended/merged into the 4th Circuit. What of the U.S. Court of Appeals for the Armed Forces? Is it the 14th Circuit? If so then why is not included in the Assignment of Justices of the U.S. Supreme Court? So many questions! Is this the 1st time 2 associate justices from the same state, New York, are serving @ the same time? Why are there still 19 states that have never had a native son or daughter serve as a Supreme Court justice? Would not a requirement that only those who have lived in a US Circuit collection of states be assigned to the Circuit? As it is now only 3 justices are “from” outside the “Northeast” regions of the 1st, 2nd, 3rd and 4th Circuits.
Well now I am even more unsure.
For those of you with access to SSRN, E Glaeser and Cass Sunstein have a paper there on group deliberative processes. Even if Bayesian theory is not your bag, the authors take pains to flesh out the math.
If I read the paper correctly, an expanded Supreme Court might actually get “dumber”, although the authors don’t really address the issue of group size except tangentially and only consider the three-member panels of the federal judiciary and en bancs.
For any interested in the topic:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1071195
If nothing else, the paper convinces me that the reason Olympia Snow and the other republican “moderates” have voted so immoderately so often is the group polarization phenomena discussed by Glaeser and Sunstein.
Poetry, Nigel!
But even elegant writing cannot make secession and the breakup of our country seem like an inevitability. 🙂
Re-imagining the Union. I remember that book that came out in the eighties or very early nineties about the “natural” (as opposed to artificial) divisions of America into regions like “the breadbasket”, “the empty quarter”, “ecotopia”, etc. It was called something like “9 Nations of N America”.
Accentuating the differences and then expecting political comity to result in a forced union is a poor prescription for anything other than gridlocks. Rather like what we are enjoying now.
The sullen art of governance involves finding ways to accentuate the shared goals and over-arching identities. You can make a country function easier by puree than by centrifuge.
As to the original idea of Professor Turley. I think it would be very prudent before expanding the Court, to look at data from the social and behavioral sciences about group processes and decision making efficiency. Do groups’ collective intelligence go down as the groups themselves get larger—this is a key question. Are committees “stupider” than the individuals that make them up? We need to look at the science before jumping ahead with an expanded Court. My uneducated guess is that larger groups are slower to take decisive actions and settle around status quo equilibriums.
Brown v Board of Education might have been impossible for a 19 member Court to achieve. But I’m not sure of myself here.
While I disagree with the Prof on a number of issues, this ain’t one of them. That said, his remedy strikes this freethinker as being just a tad little and more than a tad late. That said, the Prof’s a thinker, so I’m a fan.
When one gets right down to it, I believe Larry Sabato and others are closer to the truth. The mostly Neocon/Theocon/M.I Complex-driven nastiness (the initial core of the most vocal having come from disaffected, 60s Dems – LBJ’s diaspora, as it were) only serves to lay bare the continuing, dysfunctional and systemic failure now causing the flaws in the structure of the Founders creation to stand in bas-relief. Our system needs an overhaul. Problem is, it may be beyond all surgery at this point.
Calling it gridlock (if it truly were, Mr. Paul could stay in bed, eh?) and waitng for civility and sweet reason to reassert themselves is a barren hope. I love this country (as much as any true freethinker can ever buy into imaginary lines on a map), but it is, IMHO, going down – which may not be a bad thing. Depending on how it rolls out, we may wonder why we didn’t dissolute before now. As with its predecessors, the causes are the usual suspects: hubris; exceptionalism; mammon; our shit doesn’t stink; you know. That we are at this pass in a bit more than two centuries says more about humanity’s wising up faster these days than it does about the U.S.’s failure to do the hegemonic thingie any better or worse than Rome or Byzantium.
The problem now (besides monumental idiocy and blithe denial) is that the stakes are so high, the transfer of wealth so huge, the price of failure so great, that one side is willing to do anything – as in, ANYTHING – to ensure they prevail; warming, body bags, and rendition be hanged. No doubt, sooner or later, the Dems will ape the Right’s bads simply to keep up. Already, they seem well on their way.
If November 2002 (Georgia-retake Senate), 2004 (Ohio), and 2006 (denial of Senate control) prove nothing else it is that American elections can be stolen – on a wholesale level – in broad daylight, with the perps essentially saying nyah, nyah – catch us if you can. We may yet survive Atwater’s and Rove’s long tail.
I believe that in the end, America will simply dissolve. For the ones I love, and yours, I hope it will be a mostly peaceful process. As you know, the U.S. Constitution (and outside the old Confederacy, most state versions), for all its other shortcomings, allows for this option. It is, after all, what the Founders did to free themselves from the first King George’s greedy, and equally cluelessly misanthropic, grip.
With ever increasing speed, we are now hurtling down a path that is accentuating our differences. Neocons seek out “wedges.” We are encouraged to think of ourselves as colors; just not of a rainbow. Orwell moans and shifts uncomfortably. But, unlike these periods of injustice and rank oppression in our past, today, all who wish to can see the world; who has; who has not; who gains; who loses out; whose word matches deed, and whose exposes hypocrisy; what fair and unfair look like on a global scale. The corners to hide in grow few.
Many of us who are paying attention know that, for all our vaunted and highly advertised freedom and democracy, we are, in many respects, already living in a prison nation, our fates determined more and more by the minuscule few whose sole raison d’etre seems to be to want it all for no particular reason other than they have the means to take it all. But, while redistribution won’t be pretty, the jig is up for them.
At this year’s second Secessionist Convention (the first, in 2004, had 4 states in attendance – 16 this time), terms like “self-determination” and “taxation sans representation” filled the conference venues. “Blue” states paying the way for “Red” ones (quite true, if the IRS & OMB numbers are accurate); “family values” meaning one thing in Portland, quite another, and darker, meaning in Pensacola. Fascinating stuff. And really, quite uplifting. Humans gathering to determine their own fate. What a concept! Turns out, conservatives are just as fed up with having Darwin and rainbow rights shoved their way as Liberals/Progressives are about “god-fearing” pols and unscientific “theories” dumbing down their kids on their way to competing in a reality-based global economy.
To sum up: in my view, this Constitution’s goose is cooked; the Supremes merely hors d’oeurves. The folks who want to change it – like Larry and Jonathan – aren’t devious-minded (or inclined) enough to misframe the issues to win the minds of enough citizens to carry the day. Further, folks like our two Profs are not heavily into the dirty biz of rigging elections (right now, the RNC and its many unmonikered (cats-paw) minions have the market fairly well cornered). In short, their civility will sink them; the bad guys count on it.
Far better for us to follow in the trend to disunion since WW2 – the Soviet model, please – we’ll pass on the Congo/Yugoslav dust-ups, thanks. If we’re smart (not a given), we’ll opt for a loose alliance like the EU for such as currency and borders (hey! done and done), while tailoring our laws, educational systems and government oversight to fit our regions and circumstance – enlightened and global for the West and Northeast, benighted and back-to-basics for the Old South, eh?). Our real tempests-tossed will arise out of the refusal of the M-I complex and others to cede power and riches to centers of accountability beyond the Potomac. Federalist principles should also prove a battle royal (just a different brand of royalty).
So, would you and your families prefer to live in Pacificana, Confederocracy, Neo Atlantium, or Centralia Real? Or maybe just the good ole’ U.S.A.? (Union of Separate Affiliates – reads like a News Corp set-up).
For me, peaceful secession is the least bad response to the dark visions (with damn good reason) of the many Chalmers Johnsons, Morris Bermans, and Naomi Wolfs out there. It’s the way humanity is moving, isn’t it?
Whaddya think?
(sorry, tried to keep it under 1,000)
A last comment on judicial appointment process…I think we have reached a stage of partisanship that seems to have reduced down to two incompatible worldviews that can find no grounds for compromise. Government, in the old sense of the word, is beginning to grind to a halt as the old arts of compromise are being abandoned.
Selection of justices seem to be on whether the nominees are in one camp or the other.
Once on the Court, the camps seem to dissolve a little, but are still distinct enough to cause mischief. Bush v Gore is a classic case of justices abandoning their traditional philosophies of interpretation to arrive at a partisan ends-driven result.
This must come to an end even if it means taking the nomination and appointment process out of the hands of the two political parties.
I do not want Justices even subconsciously associating themselves with political factions. But I know that’s a tall order.
We must find a way to appoint or elect truly nonpartisan Justices who have certain minimal qualifications for such a post.
I share Professor Turley’s distrust of the possibilities for pandering but perhaps that can be minimized.
Hi Professor Turley,
Looks like we were scanning the thread at the same time! Yes, the popular election of Justices is fraught with risks! I couldn’t agree more! Yet, I don’t like the citizenry being the passive captives of the dangers of factions (in the founding fathers apprehensive use of that term) deciding who will interpret the people’s Constitution.
So, some quality control mechanism would have to be put into the Amendment setting up such an arrangement.
We already set up constitutional bars for eligibility to the Executive, why not add to those for the Justices?
Approval by a supermajority of the sitting judges of a given Circuit? I don’t know.
Hi Hugh,
I agree, another constitutional congress would be a chaotic mess with all the best (and worst) ideas of the last 50 years being brought up….marriage amendments, school prayer amendments, eminent domain, repeals of other amendments, line-item vetoes, electoral college abolishment (I’m for that one) and so forth.
The nonpartisan judicial elections have become a controversial topic since business and special advocacy groups are increasingly entering the process and targeting unfriendly judges when election time rolls around. Judicial slates used to be one of the head-scratching parts of the ballot for most people and name-recognition, even of State Supreme Court judges is almost non-existent. So elections were and still are to some degree one of the most uninformed choices a voter makes.
The problem of Circuits electing Justices is twofold, one: since so much is at stake, there would be an unprecedented outpouring of private monies into any SCOTUS election. This would have to be severely contained. two: we would want to avoid the problem the Electoral College created. We wouldn’t want “empty quarter” Circuits having equal weight with Circuits with 10 times the population thus the necessity for remapping them to get them to at least approximate parity.
The problem with Professor Turley’s suggestion is that it perpetuates a practice that is becoming toxic. The nomination of Justices and review of same by factions.
I would like to see the political parties’ current power cut by 90% and that would include any hand in the nomination (and confirmation) of Justices.
Deeply worried:
I like Part One and Part Three, but I am a bit nervous (read terrified) of Part Two. The state courts have a very mixed record on quality with some elected judges pandering to public prejudices. While our Supreme Court selections have often produced vanilla favored, unimpressive members, the nomination process still produces on average a better selection. Pound for pound the quality is higher (though admittedly, when one compares on poundage Taft throws the equation heavily in favor of the U.S. Supreme Court).
Unfortunately (or fortunately, depending upon your point of view) the country is so fractured ideologically, there is almost no chance of a successful constitutional congress. The RWer’s would just put an abortion ban or some such nonsense on the agenda anyway.
I like your idea, though DW.
once again:
Here’s a zany idea: why not have the number of justices correspond exactly to the number of Circuits?
That’s part 1.
Part 2: Why not have the Justices elected for life by the voters of their Circuit? This would require a constitutional amendment of course, but it would make all three branches of the government elected by the people. It is odd to have two branches elected and one branch appointed.
Part 3: Before implementing this plan, remap the Circuits.