The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks

As many on this blog know, I rarely respond to criticism of columns that I run in USA Today or other newspapers. As a columnist, I feel that I am given a rare opportunity to express my views and criticism comes with the territory. However, I was taken aback by many of the comments in response to my Sunday column in The Washington Post discussing my proposal for the expansion of the United States Supreme Court. Though the proposal was given serious and supportive reviews by some sites like Forbes, some conservatives immediately assumed that I was a liberal simply upset with the anticipated ruling striking down the individual mandate provision of the health care law. When another law professor and blogger (Ann Althouse) joined this ill-informed and uncivil chorus, I thought I would respond. This blog has always strived to maintain a strict civility rule — distinguishing it from many other blogs by discouraging and sometimes eliminating ad hominem and personal attacks. Yet, I am still surprised by the lack of civility and responsibility by many — particularly fellow lawyers and academics — in responding to such proposals. [Update: Professor Ann Althouse has responded to my call for greater civility with a new blog entitled “Jonathan Turley’s civility bullshit about my calling ‘bullshit’ on his Court-packing plan.” Notably, Professor Althouse does not address the fact that she was completely wrong in claiming that I was motivated by dislike for the anticipated ruling striking down the individual mandate in the health care case. (Apparently both civility and factual accuracy fall into the same “BS” category for Professor Althouse).]

I previously ran the original and longer version of my column to further explain the proposal to expand the Supreme Court to nineteen members. I also have a second column in the Guardian newspaper that further discusses some of these issues.

The column generated a torrent of comments (roughly 1100 on the Post site alone). Many of these comments came from conservatives who immediately assumed that I was a liberal law professor who was just proposing this reform because I expected to the Court to rule against the health care law. Others asked why I did not propose this in the past and just suddenly called for an expansion on the eve of the health care decision.

Just to set the record straight.

First, before the health care law was passed, I spoke on Capitol Hill and expressed my personal opposition to the individual mandate law on federalism grounds though I felt that the Administration would have the advantage in the lower courts due to the current precedent from the Supreme Court. I then wrote and spoke against the individual mandate provision in columns, blog entries, and speeches. I disagreed with academics like Charles Fried on the federalism problems associated with the law. My criticism of the health care law has been quoted by members of Congress and those challenging the law (here and here and here). Indeed, a search of any browser will find hundreds of such references, including criticism of my position from supporters of the law.

Second, I did not just come up with this proposal on the eve of the decision. See, e.g., “Unpacking the Court: The Case for the Expansion of the United States Supreme Court in the Twenty-First Century.” 33 Perspectives on Political Science, no. 3, p. 155 (June 22, 2004). I proposed the expansion of the Supreme Court over ten years ago. I have discussed the reform with members of Congress and it has been debated in prior years.

Third, I have often agreed with the conservatives on the Court in its most controversial decisions. For example, like many in the free speech community, I agreed with the holding in Citizen’s United even though I disagreed with parts of the decision’s analysis and language. I have also said that I felt Arizona has a strong case on the immigration matter in claiming the right to enforce federal laws on illegal status.

Finally, the criticism of these readers and Professor Althouse below appear based on an assumption that the expansion of the Supreme Court would predictably add liberals. There is no reason to make such an assumption since the expansion is spread over a decade. Moreover, the Senate is expected to either continue to be split roughly evenly between the parties or actually go Republican in the next election. There is certainly no reason to assume that the additions to the Supreme Court would include candidates to my liking. Indeed, I criticized Obama’s selections. I do believe that additional justices will add a diversity of experience and viewpoints regardless of philosophical leanings.

After a couple of decades writing as a columnist and doing legal commentary, I have no illusions about people writing anonymously about articles or positions. The Internet often seems to unleash the most vicious side of people who seem to believe that they are relieved of basic decency or civility by anonymity. However, I was surprised by lawyers who made these baseless claims, including claims that are directly contradicted in the article (like the notion that one president would appoint all ten justices or that the number was simply selected arbitrarily). A simple search on the Internet would have shown that I am in fact a critic of the health care law.

That brings us to University of Wisconsin Professor Ann Althouse who ran a blog blasting my column. Althouse makes the point in her headline: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” She then states the column pushes for the packing of the court “in anticipation of the Obamacare decision.” She responds to the proposal with “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions. It was a bad idea then, and it’s a bad idea now.” I must confess that, when one of our regulars sent me this link, I was taken aback. I do not expect such ill-informed and uncivil attacks from a fellow academic. While Althouse writes a conservative blog and has been something of a lightning rod in the past, I would have thought that she would do a little research before going after another professor. In reality, I am calling for the expansion of the Court despite the fact that I would agree with the anticipated decision from the Court striking down the individual mandate. It is precisely the opposite of what is being suggested. Even though I expect to be on the winning side, I still do not believe it should be left to a single swing justice. I understand that some bloggers are given to hyperbole like Althouse asking “If the greatest good is in the greatest number, why not 100? Why not 1000?” — even though the column (and longer original article) addresses this question with reference to how en banc appellate courts work and more importantly the high courts of other countries. (I must confess that I find it odd to see the arbitrarily selected number of 9 defended by objecting that adopting the average size of other top courts is arbitrary). It is the allegation that I am just making this proposal due to my opposition to the expected decision that is beyond the pale in my view. I understand that we cannot always control comments on our blogs (and free speech allows for considerable room of expression), but such attacks from the academic hosts of these blog sites do not present a particularly good model for our students.

In her response to my call for greater civility and responsibility, Althouse responds by calling civility “bullshit” and says that she is “merely passionate and serious.” Rather than simply admit that she was wrong in suggesting that I was motivated by opposition to the expected ruling invalidating the individual mandate provision and a failure to simply confirm my position (which has been widely cited supporting the challengers), she again portrays the column as another example of how the Washington Post publishes columns “from law professors to launder its partisan politics into something with that looks scholarly and thoughtful.” It appears that “passionate and serious” includes falsely stating another professor’s positions on cases as the basis for a personal attack. Indeed, Professor Althouse has yet to inform her readers that she was wrong in suggesting that I disagreed with the conservatives in the health care litigation (and that my proposal was motivated by that opposition). She merely states that “In a later post, I’ll respond to more of Turley’s long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court’s opinions.” Of course, the obvious suggestion was that the column was timed to anticipate the health care decision — a common theme in comments on her blog. I am not sure what “distaste for the Supreme Court’s opinions” means (though Professor Althouse’s original reference to my dislike for a “decision” is now a distaste for “opinions.”). We all disagree with some of the Court’s decisions — even though I have agreed with the majority of the decisions from this Court. I often side with conservatives on federalism and other areas while disagreeing on other areas like free speech and criminal cases. I disagree with the liberal justices on other cases, but I am not motivated by a desire to pack the Court with libertarians (which is widely cited as closer to my own views on many issues) rather than liberals. It would make no difference to me if this was the Warren Court. It is in my view demonstrably too small. While it may seem highly improbable in today’s rabidly political environment, it is possible to make such a proposal out of principle. Moreover, in a term with a series of 5-4 decisions on major cases and polls showing an increasingly unpopular Supreme Court, the proposal is obviously relevant to the current debate.

I have spent over ten years advocating for the expansion of the Court even though I often agree with the rulings of swing Associate Justice Anthony Kennedy. Putting aside the possibility that my proposal is based on principle rather than partisanship, I have never encountered a law professor advocating for incivility as a type of personal signature (a reaction shared by other leading legal bloggers like Scott Greenfield). I was hoping that raising the issue would result is a bit of self-reflection and possible dialogue on the loss of civility in our national discourse. While I did not expect an apology from Professor Althouse, I did not expect an academic to affirm the value of name calling and incivility — even when the blog is shown to be wrong on critical allegations.

My only point is that the overall commentary following the column shows once again how we have lost the tradition of civil discourse in this country. The tendency today is to personally attack people with whom you disagree and suggest hidden agendas or conspiracies. I am always delighted to see spirited debate following a column, including those with whom I disagree. As in a classroom, I value the debate for its own sake — forcing people to consider alternative views and possibilities. The current tendency to shout down other voices with shrill or sophomoric attacks is degrading our politics and our society.

UPDATE: Professor Althouse has written a long line by line rebuttal to my objections. I encourage you to read it and, I may be missing a subtlety, but I do not expect an apology. You can judge for yourself if it is credible that she now insists that she was not in any way criticizing me personally or suggesting that I am advancing the proposal because of my disagreement with how the Court’s decision. For example, she insists that she was objecting to the Washington Post and not me in a blog where she quotes me in saying that “Roosevelt may have had the right idea for the wrong reason.” Her response to my statement is to say “Oh, spare me the bullshit. It’s the same reason. You don’t like the opinions.” [emphasis add] This follows the title of the blog: “Don’t like the Supreme Court’s decision? Propose a Court-packing plan!” Professor Althouse then goes on, after insisting that she was not questioning my motivations as opposed to the Post, to explore suspicions that I am motivated by my dislike for opinions of the Court — even though I have been advocating for an expansion of the Court for over ten years. In the end, our two statements offer strikingly different views of the need for civility, which Professor Althouse continues to call so much “bullshit.” I obviously do not take that view. We have had valuable exchanges with academics and others (including regulars on this blog) who disagree with my columns. I originally spoke out because of what I viewed to be the uncivil and unprofessional tenor of the blog by Professor Althouse as well as the suggestion of an unprincipled motivation for calling for the expansion of the Court. I confess that I do believe law professors have a higher burden in preserving civility in discourse. We do not always succeed and passions can overcome judgment on occasion. However, as both lawyers and academics, I do not believe that we should not add to the already stifling level of ad hominem attacks on the Internet. You can judge for yourself on the merits of the dispute and everyone can return to the site that most appeals to them.

Jonathan Turley

196 thoughts on “The Limits of Civility: How A Proposal On Reforming The Supreme Court Unleashed A Torrent Of Personal Attacks”

  1. As such, it really should not be too difficult to shell out some time building a database of tables like what is suggested
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  2. I understand that but being from registered voters does not negate the pay to play. How will people learn about these candidates, it becomes no different then any election. Also people tend not to come out unless they have a very specific bias, look at the turnout of local elections and even primaries. (It reminds me of the petition system where you need so many signatures to get on a ballot, so the signatures are primarily made up of people who already support the particular person, it does not change the mix of runs (or is appointed”. Any ideas are worth considering esp because the SCOTUS is nothing more, for the most part, then an extension of the party from which the majority comes (or shares their beliefs)

  3. “appointed at the local level” would virtually ensure that it is a pay to play.

    1. Lee – please read it first. The appointments would come directly from Registered Voters, not from the existing judiciary or political system. Each Jurist would be required to get a specific number of Citizens to appoint them. I was thinking in the range of 50 people but that number could be determined by dividing up the total number of registered electors and dividing by the number of jurists desired. For me the more the merrier, but you don’t want to bastardize the system either.

  4. Jonathan Turley,

    I agree with your idea of expanding the Supreme Court, however going from nine to nineteen jurists is, in my opinion, still not nearly enough to separate political power out of the equation. It still does not provide the Citizens with a good method or remedy to quell the various indiscretions and abrogations of the Constitution that have been perpetrated by the judiciary over our nations history.

    The problem though, is that in no way are those in power just going to lay down and let We The People change the system. We are going to have to do it without their approval. You’ll see what I mean when you read my proposal.

    A multitude of attorneys, working in collusion, have slowly created a stronghold of power and privilege through the BAR and UPL laws causing many attorneys to be literally afraid to challenge the system. Even if your idea would gain favor, I don’t see how it would not significantly curtain this monopolistic power the judiciary has today.

    I have proposed a very large Voluntary Association of Jurists composed of those appointed at the local level directly by Citizens. It is to long to explain in a post, so please take the time to read it at:

    I have recently rewritten it in an attempt to better explain how it might work. I am surely not as well versed in the system and law as some, so if anyone wants to assist and can add value, please let me know. Appellate decisions are way to important to leave it up to such a small number of individuals. We than wonder how our rule of law has become a system of law by those who currently rule, as we watch our Constitution continue to disintegrate into another worthless social contract, just as the Magna Carta did.

    We have the technology to do something along these lines, and the freed back on your article is further evidence that those in power, wish to hold onto the status quo and that your idea has some merit. Obviously, nineteen people are better than nine, but I just don’t see how this would negate any of the significant problems within our system. I don’t think it would deter the oligarchs from their continued dangerous path.

    Everyone, please feel free to critique, question or provide improvements. I fear that if we do not come up with a better system of jurisprudence, our world will “forever” be enslaved by the ruling oligarchy and the judicial cronies they place in positions of such power.

  5. Finally got around to reading the Althouse stuff. It’s all personal attack and no substance. And all the comments by others follow her lead. Not a single sentence that addresses the actual proposal. I don’t see her as a credible source of information.

  6. skiprob,

    Why do you pull your punches now?

    Why do you not link to the essay you have espoused many times, in many places as a commentator on this blog in justifying your idea of 1,500 Supreme Court Justices? Here is the link, as given by you, to your “essay” in case you’ve forgotten:

    Such eloquence — begin with your wanted result, and without discussing details end up at your wanted result. Brilliant!!

  7. Idealist, excuse ME but how do you know how many squirrel skins I might need? HUH?

    How one gets squirrel skins by the way: Defend oneself against attack squirrels after hunting them down and standing one’s ground.

    1. Malisha,

      LOL. As to number, if you are not a fictive personae, then you must need more than a squirrel does.
      How many is determined by your haut couture designer.
      You do use the ones a la mode?

      As for a truthful answer to squirrel skins. Squirrels were once in my childhood hunted for meat, just like as is done now by the idiots who are getting leprosy from armadillos shot in Louisiana. Only squirrels have worm eggs in their meat. My brother showed me one and then threw it away.

      They also shot rats at the dump, but did not eat them.

      And you could smell moonshine fermenting/cooking from his railway motorcar through the Carolina swamps.
      He was a lineman for WU then. Later maintenance and installation manager for the whole of NC.

      All true.

  8. Waking from a dream, I return to the now vacated party place.
    Drink out of a stale highball, and then a saltnsour Margarita—alcohol is alcohol—

    I post a notice on the whiteboard: NB OS??? Is he the notorious flying Dutchman?

    And how did Malisha get so many squirrel skins for her costume? And how could Chip make a concession and expect one in return. Flying ideologues never make them.

    The rushing out of the village dogs to defend their territory was indeed amusing. New personae. What a laugh.

    Who would have thought anyone would come here and challenge our “peace”? The “disturbing the peace” attack on JT is of course ridiculous. But don’t kick sleeping dogs if you don’t want to get bitten in return.

    Does not take much to make a bully gang. Swaggering down the village main, they notice how eyes avoid theirs or hats nodded. They rule—just same way as the Taliban did in Iraq and in Afghanistan.

    Only it is drones who swagger with Obamas painted on their noses there. The missiles have the text; “Stick this up…”. Wonder if anything is left to collect as a souvenir and use as a laugheable paperweight?

    Do I hear a mariachi band in the offing. Somebody is celebrating “Fast and Furious”.

  9. “Really. And you have the balls to complain when you are attacked in kind. ”

    I’ve never complained when I’ve been attacked in kind.

    Also humor, you should look it up. Your dad was famous for it.

  10. “Ah, but it gets worse rafflaw, Otteray_Scribe has never been on the same planet as Professor Turley.”

    Really. And you have the balls to complain when you are attacked in kind. That’s just really funny if you think hypocrisy is funny. There is this concept called “The Golden Rule”. You should really look into it.

  11. P.S. You are right that the ruling endangered our republic. But then, any ruling would have endangered our republic. Richard Nixon understood this in 1960 and conceded. Gore did not. It was Gore’s failure to concede that was the real threat to our republic. It is a sad thing that Gore was not as wise and ethical as NIxon.

  12. Bob,Esq.

    > As I said via reductio ad absurdum, that’s not ‘reasonable.’

    That’s not reductio ad absurdum. That’s a miscommunication between you and me. Perhaps I was too terse, or unclear. Me, I think that complaining about the Court not following the legal process is reasonable, and I think you agree, based on what you wrote. Where we disagree is that I think the Court followed the process.

    > Tom, you obviously never gave this topic any thought because you were more concerned with the outcome than the procedures involved.

    Based merely on the fact that my comments were very brief, I don’t see how you can make any grand generalizations about my thought processes. However, I can say that if you were using a mind reading device on me, you paid too much! When I read judicial opinions, even ones I don’t like, I am impressed by the reasonableness and persuasiveness they embody. Sometimes they change my stance. Usually they just moderate it. If it is easy, it doesn’t make it to a judge.

    In addition, your machine failed to reveal that I voted for Gore. OTOH, iIt also failed to reveal that I was happy the Court made a decision which was promptly followed, because I was impatient and worried about an interminable process leading to something like the previous historical shenanegans. Every time the choice had made it to Congress before, the country was really unhappy.

    It’s nice that you refered to Chemerinsky. Upon reviewing his article I find it reasonable, but not persuasive enough. Unlike judicial opinions, which typically bring up and attempt to dispose the objections and counter arguments which occur to me as I read, his article leaves what I consider crucial counter arguments unanswered.

    I would also wonder if Erwin Chemerinsky didn’t like the result.

    > Further, Article III did not give the Supreme Court the power to override Article II through injunctive relief or otherwise. That is to say, the 12th Amendment clearly states that Congress had the power to resolve the issue; not SCOTUS.

    No it doesn’t. The Supreme was not deciding who would be President. They were deciding how the popular vote would be counted. That is not clearly governed by the 12th Amendment. If true, Gore clearly shouldn’t have brought suit, and his lawyers clearly should have refused to represent him. Did you skip over some key arguments necessary for that clarity?


    > Do you really believe anything newspaper print?

    No. There were multiple reports. In addition, it would have been in the reporter’s interest to find that Gore should have won. Bigger headlines. Maybe a Pulitzer. Fame. Book deals. Maybe even groupies.


  13. Otteray Scribe,


    (But I was dressed in dark clothing and I was acting squirrely.)

  14. Ah, but it gets worse rafflaw, Otteray_Scribe has never been on the same planet as Professor Turley.

  15. ” I wrote that Turley was wrong to have published an ill-timed op ed piece that was almost guaranteed to reduce the level of civility in public discourse about the SC. ”

    What better time to discuss the impact of the size of the court and the inherent factionalization on the over-politicization of society than now, when there are several factionalized decisions coming down in pretty much the same 5-4 order and few people are discussing the decisions themselves as opposed to screaming at each other over the politicization of the court and society?

    Seriously, we can’t all be like you and publish are analyses and calls to actions at 2am during the worst snowstorm and blackout in history just to make sure we don’t upset tum-tums.

    “Moreover, it seemed that he was being disingenuous in his expression of shock and horror at the incivility he provoked. ”

    There was nothing in his piece that should have resulted in any incivility, much less the creepy nonsense Althouse was shoveling.

  16. OS,
    That is a stretch! But, as I think about it…I have never been in the same room as Prof. Turley either. Maybe Mike S. has something there!

  17. Mike Spindelli said…

    You assume that this is a time of “preparing the battlefield”, which connotes Liberals are ready to attack SCOTUS, which begs the question since people have been attacking SCOTUS continuously since the ridiculous overreach of Bush v. Gore.

    So, I’m wrong that liberals are preparing to attack the Supreme Court furiously because they’ve been doing so for almost a dozen years already?

    I’m sure you’ll understand why I find this argument specious. I wrote that Turley was wrong to have published an ill-timed op ed piece that was almost guaranteed to reduce the level of civility in public discourse about the SC. Moreover, it seemed that he was being disingenuous in his expression of shock and horror at the incivility he provoked. Your rejoinder that “right wingers do it, too!” is not much of a defense.

    Can you comprehend how I can hold those views and still think that Ann Althouse was out of line?

    As far as this goes…spare me your civility, Chip you came to attack…, you don’t seem willing to recognize the difference between respectful criticism and an “attack.” I did not attack Turley; I raised a simple point. A point that you have responded to with illogical arguments (“everybody does it”) or off-point arguments (“Turley’s against the individual mandate”) or–frankly–incomprehensible statements like this:

    …one of the things that seems to amaze those who drop in here is that just because they comment they are entitled to respectful replies.

    I mean, I think I know what you’re getting at here, but I’d really be assuming a lot, and I know how much that rankles you.

    Since you’re clearly one of those people who’s determined to win the internet, I’m going to drop this now. I’m sorry that you think I’m putting on a pretense of erudition when I say that I’m disappointed that the initial response here to a couple of new people showing up with different views was immediately characterized as an invasion of your sacred space by talking-point-spouting bots.

    I’m aware that you describe yourself as being devoted to social justice. That’s an admirable motive, but I think that you would do well to leaven that self-appraisal with an admission that you, as well as those with whom you disagree, are fallible humans who are not always right. Otherwise, you’re in danger of seeming to be a sanctimonious ideologue, which I’m willing to assume you’re not.

    All the best,


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