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It has become a common refrain: It could come down to one justice. That is the general view of the possible outcome of the health care debate this week. After a bitter 14-month fight in Congress and an unprecedented challenge by a majority of states opposed to the law, no more than five individuals are likely to decide the question for the country. The same could be true of immigration — an issue deeply dividing the nation that will have a pronounced impact on the upcoming presidential election. The same is true of free speech where the Obama Administration is seeking sweeping new authority to criminalize false statements. As citizens have gathered anxiously every Monday morning for weeks for the Court to hand down its latest pronouncement, some have questioned the hold of such a small number of unelected jurists on the nation – or, in some cases, one “swing Justice,” Anthony Kennedy. Last week, Associate Justice Ruth Bader Ginsburg fueled the anxiety of citizens in a public speech – alluding in a speech to “sharp disagreements” in the outstanding opinions while teasing that “those who know don’t talk, and those who talk don’t know.” Ginsburg’s speech felt, uncomfortably, like the oracle from Delphi informing the public of its coming fate from the circle of nine. Perhaps we should stop asking about what this Court decides and rather whether “those who know” are too few and “those who don’t” should be demanding fundamental changes of the Court itself, including its expansion.
Health care and immigration are just latest cases shaping the country in an image sanctioned by the Court. This has included sweeping changes in the political process from the Bush v. Gore decision in 2000, where the court effectively chose the next president, to Citizen’s United case, where the court struck down campaign finance limits for corporations. Both decided by just five justices.
To some extent, the power of the Supreme Court will always remain controversial and elitist by the mere fact that they are the final word in such 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, including Al Gore himself. A “judicial activist” is often a jurist who doesn’t do what you want. Any Supreme Court of any size will always render decisions that are unpopular. It is supposed to. Federal judges are given life tenure to insulate them from public opinion to allow them to protect minority interests and basic liberties. However, there remains the question of how many people should it take to be the final word on such questions. Our highest court is so small that the views of individual justices have a distortive and idiosyncratic effect upon our laws – a problem that most other countries have avoided with larger courts that allow a broader range of views and experiences.
A national poll this month showed the public overwhelmingly opposed to how the court functions. Only 44 percent of citizens approved of how the court operates and 60 percent believe that “appointing Supreme Court justices for life is a bad thing because it gives them too much power.”
Many citizens and scholars alike started looking critically at the Court’s structure after the Bush v. Gore decision – and the power that just five 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 the opinion could not used as precedent as “limited to the present circumstances.” Thus, five justices did not want their reasoning used for anything other than selecting the next president of the United States.
The current controversy could not come at a more symbolic moment. This year is the 75th anniversary of the famous “court packing” effort of Franklin Delano Roosevelt. As today, the country in 1937 was in the midst of an economy crisis and Roosevelt was saddled with four conservative justices – known as “the Four Horsemen” – who opposed his New Deal legislation. Three justices were predictably liberal (called “Three Musketeers” at the time), but not enough to carry the day against the Four Horsemen and the Associate Justice Owen Roberts, who was often a swing vote on New Deal legislation.
Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices on the Court. The crisis was averted when Roberts voted to support a critical New Deal case and “Horseman” Justice Willis Van Devanter retired – the famous “The switch in time that saved nine” moment for the Court. However, Roosevelt may have had the right idea for the wrong reason.
The deep respect for the court as an institution often blinds us to its flaws. The greatest of those flaws is that the court is demonstrably too small. Nine is actually one of the worst numbers that you could pick – and it’s certainly not what the founders chose. The Constitution itself does not specify the number of justices and that number has actually fluctuated through the years. 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 members: six. In fact, when the court first convened in 1790 in New York at the Royal Exchange Building, only two of six 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 actually sat as judges in lower courts, Congress would add a justice when it added a circuit – or reduce the Court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of a Court.
Justices detested riding circuit and eventually convinced Congress to end the practice. The court remained at nine members despite the fact that most federal courts of appeal now have as many as 29 judges. Ever since the Court rested at nine members, we have repeatedly had problems of 5-4 splits 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 Kennedy, Justice Sandra Day O’Connor was the swing justice and, for years, shaped the law according to her often changing views on subjects ranging for the death penalty to privacy.
Some proposed reforms seek to break the hold of justices by rotating these positions among federal judges while other reforms seek mandatory retirement dates. I believe many of the problems of the Court come comes to its size: it is dysfunctionally too small.
While the best number is debatable, I believe a 19-member court would be ideal — roughly the average size of a Circuit court. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges are consistently the swing votes on all issues when they sit “en banc” or as a whole. While appellate court generally sit in three judge panels, they sit as an en banc court in cases of great significance — the highest level of appeal short of the Supreme Court itself. In such cases, they function well as a whole and show greater diversity of opinion and experience. More importantly, the power of the judges themselves is diluted by the number. Experience has shown that a 19 member court is small enough to be manageable and would not present a significant burden in terms of confirmations.
Regardless of its conclusion on the optimal size of the Court, this is a discussion that is long-over due. It is not enough to simply retort “why not 29 or 99?” One could just as easily ask “why not 3 or 6?” The point is that we trying to decide on the best size for the court and should be able to discuss it civilly and objectively. Just because we settled on 9 arbitrarily does not mean that any number is as good as any other. A 19-member court has been shown to work where a large court would be unwieldy. Experience both domestically and internationally would suggest that 9 is quite small for a court with such final and sweeping authority.
A review of other nations reveals far greater diffusion of power. While other countries will rotate cases among panels of justices, high courts tend to be larger: Germany (16), Japan (15), United Kingdom (12), India (31), Israel (15). Some use far greater numbers of justices who are divided among different divisions like the 74 jurists in the Spanish high court or the 124 judges and deputy judges in France. Again, while these systems have important structural differences, they do not have the concentration of power that characterizes the U.S. Supreme Court.
Both the recent polls and proposed reforms reflect a common concern that nine people should not yield such concentrated and stagnated power. Moreover, even if we were to accept an elite court of just nine, these would not be the nine that most legal experts would choose. While clearly intelligent people, most justices are selected for their confirmability — a process that tends to favor formula nominees with a narrow range of experience and a short paper trail. The irony is that, because there are so few positions, confirmation fights have become increasingly bitter and presidents have become increasingly risk-adverse. The result is that nominees are selected because they have never said or written anything remotely provocative or even interesting. Many are selected precisely because they are unknowns at the time — Sandra Day O’Connor, David Souter, Clarence Thomas, and most recently Elena Kagan. While clearly intelligent people, few of the current justices were viewed as intellectual leaders or even top standouts in their field before their nominations. Bypassing clear leaders in courts, bar and academia, modern nominees are selected as a type of judicial blind date. The chances that we could have a Louis Brandeis or Joseph Story on the Court in the current system are at best accidental.
If Congress ordered the proposed expansion, we’d get to a bench of 19 gradually with no president allowed to appoint more than two new justices in a term. Once fully staffed, the Court would have a more regular turnover. This would allow a broader range of diversity on the Court and more consistent opportunity for each president to add members to the Court. It would also decrease the importance of the individual justices – potentially allowing nominees with a broader spectrum of experience and ideas in shaping doctrines on free speech, privacy, and other issues.
The expansion of the Court 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 heard from lawyers and judges alike is that justices are out-of-touch with the reality of legal practice and judging. A 19-member court would allow two members to sit on an appellate court each year by designation – actually forced to apply the rulings that the Court sends down to lower courts. Every five years, justices would be expected to sit as trial or appellate judges. The remaining 17 justices would sit each year to rule on cases.
The benefits of expansion could be magnified further by two smaller reforms. First, Congress should mandate that the Code of Judicial Ethics apply to the justices as it does lower judges. Currently basic rules and procedures for judicial misconduct do not apply to the justices, who sit as their own judges. The court has proven itself to be a poor guardian of its own ethical and professional standards. Second, Congress should immediately require that all hearings before the court be televised. Just this week, Senators called for the health care decision to be televised – a request previously denied by the Court. The Framers were modern men who loved technology and would have been enthralled by a technology that would allow all Americans to watch the court – rather than a handful willing to stand outside of the court for hours or even days for one of the few seats. Citizens should be able to listen to the arguments and make their own judgments on the merits of these cases rather than have such arguments filtered through the often imperfect third-hand accounts of broadcasters and bloggers.
It is not surprising that some members have threatened to resign if cameras are allowed in the Court. There is sense of entitlement that comes from the cloistered and insulated culture of the Court. There can also be a more self-serving motivation. Cameras would not only allow the public to see the Court in operation but would allow the public to see justices who have diminished capabilities. We have had a remarkably long line of justices who were had obvious disabilities from drug addition to insanity to senility. However, they have been able to continue on the Court without public outcry due to the Court’s self-imposed insularity and opacity. Some justices like William Douglas and Thurgood Marshall resigned after televised appearances showed greatly reduced cognitive or speech ability.
There is a tendency to treat institutions like the Supreme Court as inviolate and no doubt the proposal to expand the Court will be viewed as virtual heresy. 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 Jeremy Bentham once 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.