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.

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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. 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?

  2. 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.

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

  4. Isn’t Senatorial advise/consent enough?
    That way the minorities in New Hampshire and Rhode Island get protected from the Californians. Heh heh!

  5. 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.

  6. 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.

  7. 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.

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

  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. 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.

  11. 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

  12. 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?

  13. 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)

  14. 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!) 😉

  15. 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.

  16. 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?

  17. 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…..

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