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. 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.”

  2. 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.

    • “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.

      https://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.

  3. @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…
    🙂

  4. 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.

    • 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.

  5. 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.

    https://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.

  6. 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.

    • 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.

  7. “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.

    • “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.

  8. 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.

Comments are closed.