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
Gene and bettykath,
I do agree that Roberts is a political animal, but I am just amazed how his arguements turned around on a dime, if the Campos article and others like it are accurate. He may have gotten cold feet,but he may have also realized that if the Court had rejected the ACA in its entirety that the prestige of the Court would have been damaged. I just don’t know.
bettykath,
Considering that the tax rationale is a facile argument (and I know that I’m not the only one who thinks this – Mike A. has used the word facile in describing that opinion)? I’d like to be able to give Roberts the benefit of the doubt, but after Citizens United and other subsequent decisions, the pattern of behavior (i.e. favoring corporatism and corporations over other considerations), I find it difficult if not impossible to not see this decision as a callously designed political maneuver.
Gene, Raff,
Do you think it possible that in writing the dissent Roberts saw that he was going down the wrong path? It seems that they usually engage in interpretations of laws, not whether the whole thing or parts of the whole are constitutional at the get-go. I’ve read that the Court tends to give Congress and the President the benefit of the doubt (probably a poor choice of words) before striking a law, i.e. finding it unconstitutional.
In that light, isn’t it possible that he saw the validity of the tax rationale? He didn’t make up the tax rationale. It was presented in oral arguments. I guess I’m wondering if maybe his rationale and motives aren’t as politically driven as I have previously thought.
raff,
Almost like he’d had a tactical epiphany.
Gene,
That Campos story is pretty amazing stuff. Roberts seemed to switch in mid-stream.
“For instance, what would make public education either constitutional or unconstitutional?”
The General Welfare and Commerce Clauses and the taxing and spending Clause for starts, but here’s the rest of your homework, skip.
http://www.departments.bucknell.edu/edu/ed370/federal.html
Gene, Yea yea, The socialist always invoke the commerse clause and the General Welfare Clause. They’re the one always used to take away individual rights. What about Article IX? The retention of my rights even when not enumerated in the Constitution.
You’ve obviously one in the courts and our society is paying the price for it.
Bron,
Have you read the dissent? I think there is a pretty strong difference between changing your mind and working both side of the street.
BettyKath,
Good stuff.
I run around here begging so much that no one could reasonably expect me to have difficulties cleaving off of my high horse to ask for help.
You say:
“Just opinionated about a lot stuff.”
Favó subject: We all are. Because it is so difficult to change our biases. But some do if for other more perverted reasons. No names needed.
Like a well-known figure I must rest from my labors and let the air clarify.
(I really thought I had seen your name bylining a blawg here. Delisional hopes. Thought that right had won against might, for the first time.)
Time: 0130 ie one-thirty AM.
OTOTOT
For those tired of Roberts demonstrating that he is a free agent (sports anyone?) available for purchase this season, try:
http://www.nytimes.com/2012/07/03/business/glaxosmithkline-agrees-to-pay-3-billion-in-fraud-settlement.html?_r=1&nl=todaysheadlines&emc=edit_th_20120703
Then try this one on how BIG PHARMA regards 3 Billion as CDB, and how like Wall Street they avoid criminal prosecution. In the meanwhile, like mortgage holders, the patients effected by marketing and off-brand sales suffer without even a campaign wave from Obama.
Or if you prefer to read decisions and weep, try:
http://www.justice.gov/opa/gsk-docs.html
NO, WAIT, IT WAS NOT URL TO THE USUAL ARCHIVE, BUT TO DOJ PARTICIPATING AT THE PRESS CONFERENCE BY THE CRIMINAL DEFENDANTS. GOT THAT? Prosecution kisses defendant on both cheeks. Guess which ones.
GSK wins big.
Is that why they dumped Bin Laden in the drink. Because he refused to do a joint press conference with Obama.
Notice any suspicious side-effects lately. If nothing else the price of drugs must have registered in your wallet/purse.
707
“Full moon rising here. Do you see the same, no it will rise six hours later there.
BTW you are a guest blogger, it seems. Good choice by JT.
PS I used a jumper cable to start my car (dead battery) yesterday. BIG achievement. Daring to ask for help was the hardest part.”
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Not likely to see the moon tonight thru the overcast. Heat wave stopped by a nice gentle rain.
Not a guest blogger. Just opinionated about a lot stuff.
I understand the difficulty in asking for help. I’m getting over it – there’s just too much I don’t know or can’t do. I’ve always been the helper, not the helpee. It’s time for turnabout.
I don’t know about Roberts. I’d like my intuition to be wrong but it has been right more times that it has been wrong.
barking dog:
you make a lot of sense with what you are implying.
Expand that to congress critters being required to have met a payroll and started a business and you may be on to something. Or even just worked in the private sector as something other than a lawyer.
Four from New York and two from Jersey. Six of Nine. They represent that part of the country where people know everything. West of the Jersey state line is a big muck until their minds land in LA or Frisco. I lived in a reitrement community wholly populated with Yorkies. If you tell them you just got in from St. Louis they will ask you how the weather was in Michigan. They are such smart citizens that they have to leave their state when they retire because they can not afford the taxes on their homes each year–it well exceeds their social security payment. It is folks like these who bring you Citzens United. Owned by Bain and have no shame.
Question for fellow commentors: How many of the present Nine have ever defended a human in a state or federal court on a criminal charge?
How many have ever sued an insurance company on behalf of a citizen who got cheated?
How many have ever tried a jury trial as a lawyer, not a judge?
Their prior histories were something like this: Harvard or Yale, clerk for a judge, government work, teaching, judgeship in the DC Court of Appeals, or some federal court of appeals, and government job like Solicitor General, hence Supreme Court.
hskiprob 1, July 3, 2012 at 5:53 pm
@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?
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I suggest a little trip down to the community college for a course called “Civics 101” and “Blasphemy”.
You don’t seem to like law.
idealist707 1, July 3, 2012 at 4:05 pm
….
Dredd,
Loved your authoritative quotes. Could you as easily find equally authoritative opposing ones??
….
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No.
That is the law.
I am not saying I agree or that I think it is the best rule of interpretation, but it is the law for ages.
Next is, when that way of upholding it is found, and it becomes the decision, the rest is dictum.
The runners up in the Miss America contest don’t do Miss America.
We are profound over here dood.
Gene H:
that is interesting. But then maybe he truly believed he was wrong, arent people allowed to change their minds?
What a flake he must be. Now neither the left nor the right is going to respect him. The left because they now know he is their errand boy and the right because he just violated his oath.
harry skip:
how are things?
@Bron, Well, thank you. How about you? I can’t beleive that you’re still wasting your times with these dudes. They have lot’s of opinions but can’t answer a single question that would put them in a position in oposition to their biases and obsurd perceptions. I remember when I first started arguing with the libertarians. When you finally have to recongnize your inconsistances and fallacious arguments. The truth does set you free though but it also confinds you in a position of having to deal with people whose existance is based on an erroneous foundation. Ad in our devilish nature of lies and deceit and you really have to protect you ass in every transaction. No more leaving the front door open at nights in most neighborhoods. The corruption has finally filters down to the majority.
I’m sold on your idea, Professor Turley. It makes great sense to a nonlegal person.
BettyKath,
Different classes. I string up Christmas tree lights and you take a scalpel and needle and thread to do brain surgery.
Liked your take on Roberts. Isn’t it frustrating to see someone like him? Which way will the snake turn next?
Full moon rising here. Do you see the same, no it will rise six hours later there.
BTW you are a guest blogger, it seems. Good choice by JT.
PS I used a jumper cable to start my car (dead battery) yesterday. BIG achievement. Daring to ask for help was the hardest part.
I watched Roberts confirmation hearing. I was impressed by his intelligence and his use of words that allowed him to obfuscate. I tended to not like him based on intuition alone, well, maybe his smugness contributed. My impression was that he would do whatever he wanted and he would be able to produce a rationale to support it. He didn’t disappoint (unfortunately) He did that in Citizens United. I think he did it in ACA.
If anyone doubts Roberts “integrity” on this issue? You need to see this . . .
Roberts wrote both Obamacare opinions
A Court source tells Salon the chief justice wrote the majority opinion and much of the dissent in the ACA case
By Paul Campos”
Janus is a slang term for people double-speaking people not to be trusted for a reason.