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
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.
Source: Washington Post