Chief Justice John Roberts Opposes Court Expansion Proposal: A Response

Despite our recent appearance as co-commentators last week, Chief Justice John Roberts has spoken against my proposal to expand the Supreme Court to 19 members. According to the Washington Post, Roberts said that he opposed the proposal and added “Well, I suppose it depends on who gets to pick them.” For prior columns on my proposal, click here, here and here and here. (See also 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)).

Unfortunately the full remarks of Chief Justice Roberts (if there were any)  are not given in the article. However, the brief comments noted do raise a couple of common objections and an opportunity to address them.

First, it is worth noting that my proposal calls for the additional justices to be phased in with no more than two new justices being selected in any one term. Thus, the expansion would occur over twenty-four years. There is no basis to assume that a conservative or a liberal — let alone a Republican or a Democrat — would select most of these nominees. The answer to Chief Justice Roberts on who will select the nominees is simply this: between 3 and 5 presidents. The even shorter answer is “the same folks that who picked you.” I am always struck how arguments against expansion would easily bar the current system. Nine is an arbitrary number and yet using the average size of appellate courts (en banc) and high courts of other nations is attacked as arbitrary. The current Court members were selected by different presidents and Senates and yet the same selection process is somehow suspicious for additional justices.

Second, I did not expect the current occupants of the Court to eagerly embrace a proposal that would dilute their current power. In his favor, I am sure that Roberts does not view this as a threat to his own power or those of his colleagues and that he simply feels that it works fine with nine. He has a great love for the Court both as a former litigator and the current Chief Justice. It is hard to break away from something so familiar, particularly in an institution that is revered by many. However, as discussed in the prior columns on my proposal, both en banc appellate courts and the high courts of other leading nations offered a better model for the Court with less of a concentration of power.

Like a conventional monopoly in the market, I do not expect current holders of these positions to be thrilled with adding 10 more justices and viewpoints on major cases. However, the recent decision on health care in my view vividly shows the dysfunctional aspects of a nine-member court. Indeed, this was the reason that the Washington Post ran the piece two weeks ago. As discussed in that column, it was likely that the decision would be another 5-4 opinion though experts divided on how the decision would come out. As stated in the column, it doesn’t matter. It is not the ultimate result but those deciding that is the focus of the proposal, which was made over ten years ago. Health care should not come down to just five justices, in my view.

Look at the health care decision and, as expected, it offers a powerful example of the concentration of power in the small court — as I discussed yesterday on NPR. While many have heralded Roberts’ vote as a vindication of his promise to bring greater unity on the Court, it is a 5-4 decision with the same rigid views — with the exception of Roberts’ vote. The liberal justices did not join Roberts in the key federalism ruling. This is the first time Roberts has ever joined liberals in a 5-4 decision. The opinion is fractured into a daunting number of opinions:

Majority: Roberts (parts I, II, III-C), joined by Ginsburg, Breyer, Sotomayor, Kagan

Concurrence: Roberts (part IV), joined by Breyer, Kagan

Concurrence: Roberts (parts III-A, III-B, III-D)

Concurrence/dissent: Ginsburg, joined by Sotomayor; and Breyer, Kagan (parts I, II, III, IV)

Dissent: Scalia, Kennedy, Thomas, Alito

Dissent: Thomas

Clearly, we would continue to have concurrence and dissents on a larger court, but these individual or two member opinions have a pronounced impact on the smaller court. Currently, if one or two justices depart with their own opinion, it can result in a plurality opinion or throw the rationale for a holding in doubt. The ruling in the Stolen Valor Act case (Alvarez) is a good example. While the case was (thankfully) decided by a 6-3 margin, two justices (Breyer and Kagan) filed a concurrence suggesting that a lower standard of review of intermediate scrutiny might apply in cases of false speech. It is the type of slippery slope problem that the free speech community abhors. Most of us in that community believe that free speech requires a bright line rule that avoids such ambiguity. However, with just two justices departing (even from a six-justice majority), the meaning of the opinion can be questioned with only four justices supporting the bright-line rule.

The report of the effort by Justice Kennedy to lobby Roberts after he switched sides in the case also shows the dangerous concentration of power on the Court. The entirety of the health care matter turned on just one justice. In the end, I was critical of his opinion as internally conflicted and inimical to federalism. While I respect his commitment to his own views regardless of the consequences, the rationale for this sweeping case rested with one justice.

There is a curious argument making the rounds that Roberts switched his vote to simply show that the Court was not ideologically driven. I hope that that is not true. It would in my view be unethical to vote on a matter of constitutional interpretation against one’s own views just to achieve a political objective for the Court. Last night on CNBC, I told the hosts that I would not assume the worse about Roberts in such a motivation. Ironically, not only do I believe he voted his conscience, his vote did not show unity or a break for ideology for the Court. He simply switched a 5-4 ruling to the liberals, who did not join in his rationale. Finally, I do not subscribe to the view that there is something untoward in justices maintaining their jurisprudential positions on issues like federalism. Just as the liberals have a broad view of federal authority, the conservatives have a strong view of federalism. I would not want either side to abandon such views to achieve the appearance of unanimity or collegiality. These interpretations have meaning and importance. I would not view such artificiality as a “triumph” for the Court.

As for the expansion reform, I believe last week objectively shows the dangers of a court that is demonstrably too small in my view. People (including the Chief Justice) can differ. However, my main point is that we should have this debate. We have never discussed the optimal size of the Court. Once again, it does little to ask: why not 29 or 99? Our current number was largely the result of historical accident. I could just as easily ask why not 3 or 6. The point is that we should be able to discuss the optimal size or range civilly and objectively.

Finally, I wanted to note again that the reason for 19 justices is not just the average size of the courts discussed but also the interest in having 2 justices each year sit by designation on lower courts — returning to a worthy tradition in this country. That will also not go over well with the current members (any more than my proposal for televising arguments). However, this is a debate that belongs to all citizens and not just the current occupants of the Court.

Jonathan Turley

Source: Washington Post

59 thoughts on “Chief Justice John Roberts Opposes Court Expansion Proposal: A Response”

  1. 707, I love Marisha Tomei, a very talented actress. Her accent was only slightly exaggerated. She may be from Queens. My relationship with my car is: turn on the key, it starts, I drive. turn on the key, it doesn’t start, call someone. I’m a bit more talented that that with my car but it’s a lot less interesting that it used to be.

    Wish I could add something OT but I’m really out-classed.

  2. Amusing and interesting comments:

    Betty Kath:

    I did not hear any accents. I thought the “U’s” and their attorneys were well and clearly spoken.

    And the expertise of Ms Vito, in an area on which some, because of three things they are born with and therefore feel they are experts superior to her gender, was most enjoyable to hear.

    I remember the days when timing would be done with a D-cell and a flashlight bulb.


    That was a pre-arranged call by one of the Professor’s clerks—-or was it you that called. Always reliable evidence.


    Now you lost me: I interpret your first post as historical evidence proving that the justice system has been in collusion with government and economic power since—whenever you wish to start counting.
    Your second one emerges with this:
    “Libertarianism vs Communism? The protection of individual rights vs the best interests of the majority?” Now individual rights are somewhat clear, but how did the governing forces and economic powers become transformed into the “best interests of the majority”. With wide margin for misunderstanding on my part, I pose the question.


    Loved your authoritative quotes. Could you as easily find equally authoritative opposing ones??
    Their positions could also be interpreted to approve ANY alternative reading of the statute under question……so long as it is not contravened by the Constitution. A bizarre example: The constitution does not prohibit raping thy neighbor’s wives, however many he may have. We, the judges, thus say that we interpret this statute as interpreted by “US” to mean that the abovementioned act is included in this statute, and may stand unhindered.

    I retire behind my FOS defense, ie dry sarcasm used liberally. And hope my attempts at legalese will be regarded kindly.

  3. hskiprob 1, July 3, 2012 at 2:43 pm

    @Dred = … Under your senario, the government has the right to do anything they choose as it pertains to our money and property.
    It is not my scenario, nor yours, nor your grandfathers.

    These principles are “ancient”:

    And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.” Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (concurring opinion).

    As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read…


    1. @Dredd. Everyone knows what the judiciary is supposed to be doing. That was like repeating the Bills of Rights to us. You missed my question. What specific set or sets of criteria, should the courts use to determine when the Citizens should acquiesce our individual rights and when they should not? For instance, what would make public education either constitutional or unconstitutional? Especially when it comes to private property rights, the courts have been a RUBBER STAMP for government. The Kelo case comes to mind but also We The People vs. the U.S. when the 1st Amendment right to Redress of Grievances was denied. Other than the elemental rights of speech, press and assembly, which they have curtailed by permitting in designated areas, what rights are really left. The right to property ownership is heavily impeded by annual rents in the form of ad valorem taxes, most know as property taxes. In essence, it is rent paid to the government, which is a usurpation of private property rights. The government has literally cart blanch to do as they please and the courts continually rubber stamp this.

      From those who profit from government, there are no private property rights that are not subject to usurpation. Go figure.

      We have a federal income tax, the 2nd platform of communism, in a country founded on liberty and the protection of individual property rights with a Constitution and Bill of rights to specifically protect us.

  4. I think the most important point about Justice Roberts comments is that he seemed most concerned about the political gain or loss,depending on who picked the justices. Very telling.

  5. Proffesor:

    You have some support out in the nation,Listening to a rebroadcast of the Thom Hartman show the other night a caller called in about this very subject citing your article and was very happy with your opinion as was Thom Hartman who also liked your idea.

  6. The comments avoid the principles of legal hermeneutics.

    How do you interpret legal text?

    How do you interpret constitutional text, the supreme legal text?

    The majority had it right, the commenters upthread have it wrong.

    Three clauses were in play: 1) the commerce clause, 2) the necessary and proper clause, and 3) the authority to tax clause.

    Which inform us that congress has the power to: 1) “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, 2) “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”, and 3) “To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”.

    The principles that have developed, through the evolution of legal hermeneutics, include the principle that since these clauses appear in different places with different words, they cannot be interpreted to mean the same thing, lest any interpretation eviscerate any one or more of them that then will have been interpreted to mean the same as any other.

    The arguments in comments are conflating these clauses rather than distinguishing them from the others, so as to maintain their individual meanings one from the other.

    1. @Dred = What about the property rights protected under Atrticle IX of those not enumerated in the Constitution and the involentary servitude clause. Under your senario, the government has the right to do anything they choose as it pertains to our money and property. Give me the specific requirements of when I should be forced to give up my rights for the common good and when they should be protected. Is that not what the tugglewar is all about. Libertarianism vs Communism? The protection of individual rights vs the best interests of the majority?

  7. There are few, if any, that do not believe the need for improvements to the current system of justice. Obviously the Republican form of government has not provided the justice originally envisioned and Jefferson and others informed us in advance of the potential problems of having little or no recourse against the Judiciary. It seems to me that every society throughout history has suffered for the very same problems. The Judiciary has been and is just a rubber stamp for the current oligarchy in political and economic power at the time and the majority always suffers for it.

    I believe an all important question arises, that how do you create a system of “truthful and equitable” justice without having those in political and economic power (the oligarchs) negatively intervene, especially when the two powers are joined in a collusive effort to manipulate the system. It has been shown time and time again over even centuries that this is exactly what happens, corrupting the judicial system.

    There are well known unresolved problems and working issues related to a direct democracy, as some call the Swiss system and I have come to realize and now believe that a democracy Republic has the same fatal flaws. see

    Giving that much power to such a few people is in my opinion just one of the problems. Even with 19 Justices, the influence of the oligarchy over the judiciary is just to entense for any human being to survive it’s advances. Instead of 5 people to inflence we would than have only 10 to deside a majority opinion. I do not believe that it near enough and the Citizens still would have little or no recourse.

    There either needs to be a Citizens review board over the decisions or the Citizens need some sort of methodology to fire, fine and sanction Judges other than by popular vote at the Circuit, but especially at the Appellet level.

  8. BarkinDog, 10 more members of the court is bound to increase all sorts of diversity. Don’t knock Brooklynese. It isn’t a sign of ignorance. There are any number of regional dialects that are just as difficult to listen to.

    I tried to pick a shorter clip but this is just too funny to cut, besides making the point about about regional dialects.

  9. The fact that Justice Robert’s vote on the court has astounded liberals (in that it is unique to his pattern) and sent conservatives into apoplexy, as well as the general presumption that any major decision will be 5-4 along established partisan lines speaks eloquently to the dysfunction of the Court. Anything that would prevent that dysfunction from lingering for decades would be a boon for America.

  10. A full discussion of what is wrong or needs improvement on the Supreme Court should preface the discussion of the solution. My objection to the present court is that it is way too stacked with New York (four Justices), New Jersey (two Justices who also talk like New Yorkers) and California (two Justices). Georgia should keep one Justice but not this one now sitting.
    Geographical diversity taken together with background diversity would improve the Court. As for Geographical diversity I vote for one Justice from each Circuit. There are eleven circuits plus the DC Circuit. Omit DC. So add two justices.
    Background diversity. We have no trial lawyers on this current Court. None have ever represented a criminal defendant in a criminal trial, much less in a death penalty case. The fact that they have all been judges and all went to Ivy League schools only means that they are myopic and not grounded in the real world of jury trial advocay and life. Hugo Black was one of the best all time Justice to sit. He was a trial lawyer, from Alabama, a U.S. Senator, and at one time a member of the Klan. Despite the last experiecne he was a better equal rights Justice than any that sit. The present bench has some minorites whom I would characterize as Pull The Ladder Up minorites. Sorry Clarence, Soto, Scalia, Alito (yeah Italians are minorities).

    Reforms of the Court without changing the number or selection: 1) end ScaliaCare (free medical care) as they know it. 2) July, August, September–work months not vacation months. 3) Mandatory retirement at age 90. 4) Mandatory drug tests (oxycotton and all drugs) and mandatory senility tests. Remove those who fail. 5) Lose the wierd necktie on Ginsberg’s robes. 5) full disclosure of corporate and political associations by Justices. Ask Clarence why he had that Confederate Flag on the wall behind his desk when he was an Assistant Attorney General in Jefferson City, Missouri prior to getting appointed to Chairman of the EEOC and what he meant by the statement that he “was Unreconstructed”.

    Nineteen of these schmucks is not better than nine. Deduct three from New York and two from Jersey and one from California right now.
    Listen to the oral arguments on CSPAN. Six justices speak Brooklynese. Tirty turd and a turd (33rd Street and 3rd Avenue). All evoke Ivy League hauty tauty.

  11. “There is a curious argument making the rounds that Roberts switched his vote to simply show that the Court was not ideologically driven.”

    The argument is more complicated (and admittedly more cynical) than that in toto. It goes along the lines that this decision was a multiple advancement of the monied agenda despite being dressed in the terms of a loss;

    1) namely that the decision while appearing to be a victory for a liberal cause is not because of the form of the decision being based on a taxation argument which plays short shrift to the Commerce Clause arguments but also effectively lays the ground work for truly eviscerating the Commerce Clause at a later date based on both the decision proper and the dicta (a long term goal of those more concerned with their pocketbooks than justice),

    2) it weakens Federalism by allowing a taxation argument to circumvent the Federalism concerns addressed by the Commerce Clause arguments, the ruling gives Congress and people like Bohner and McConnell a tool to further erode Federalism via framing future moves in the language of taxation,

    3) that the holding will serve to further rationalize privatization of governmental services and bolster the practice of using taxes to directly benefit for-profit corporations leeching money out of systems better served by a not-for-profit provision model and

    4) that it provided the illusion of non-partisanship on behalf of a court badly in need of such a public relations move, but that considering the actions of SCOTUS under Roberts as a whole in favor of corporatism that such a singular action at such a critical juncture vis a vis timing and the need for a positive PR boost can rightly be viewed not only cynically but as a warning that a single data point does not make a trend.

    I’m glad you have such a high opinion of the CJ’s integrity, Prof., but based solely upon this ruling and rulings past like Citizens United as they happened and the extreme role both money and partisanship now play in Washington and in SCOTUS (need I say more than mention the manifest and recurring conflicts of interest seen in Scalia, Thomas and Kagan all of whom persistently refuse to recuse themselves?), I also think any such cynicism is merited. Just because an argument has a cynical element doesn’t mean it is wrong. Democracy is dying the death of a thousand cuts and this decision will ultimately further that end.

  12. A couple questions: Why is it that you discount the other concurring justices opinions? What you’re calling a single-justice decision is, in actuality, a concurrence of five people. I think to pose it otherwise is to controvert the meaning of majority rule.

    Second, why complain about the concentration of power in the Supreme Court, which has a democratic process constrained by centuries of jurisprudence, when the President can arbitrarily strike a law with the stroke of his veto? Isn’t that a far greater concentration of power within one man with no constraint whatsoever?

    I’m definitely swayed by your argument, but these two stand out to me.

  13. We all need to REASON MORE on the subject of all three branches. Hallowed does not mean cast in stone, as the election finale of Gore v Bush reminds us.

    Some might live to see a better SCOTUS.
    Hope so.

  14. Keep fighting the good fight Jonathan. It’s tough to do in a world of reactionism and blind partisans, but we need objective and reasoned voices like yours.

  15. I never thought about the size of the court but all your arguments make sense. It IS a lot of power and a huge responsibility, especially for the swing voter. Considering that the biggest objection seems to be who’s going to pick the judges, those reading are letting their initial bias keep them from reading all the way through with understanding. Headline reading is a common fault these days. (i’m frequently guilty.) The discussion has started.

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