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. 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.

  2. “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?

  3. 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.

  4. 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, …)

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

  6. 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?

    1. “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.

  7. 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.

  8. @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.

  9. 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.

  10. 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.

    1. “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.

  11. 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.

  12. “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

  13. 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.

  14. Professor,
    I have nothing to add save that I totally agree with every thing you wrote.

  15. 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

  16. 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.

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