Turley To Speak To The Seventh Circuit Bar In Chicago

seal_of_the_united_states_court_of_appeals_for_the_seventh_circuit-svgToday I will have the honor of addressing the Seventh Circuit Bar Association and the Federal Bar Association in Chicago. I will be speaking at 2:30 pm on the Supreme Court’s history and current issues. I will be flying in this morning from Houston and look forward to seeing my home town. I will be in Chicago for the first two games of the National League Championship so I do not want any former classmates or childhood friends to hesitate to unload that extra ticket to Wrigley.

The Supreme Court has started the new term with only eight members due to the passing of Justice Scalia and the refusal of the Senate to take up the confirmation of Judge Merrick Garland. I have long argued that the Supreme Court is manifestly too small even with the full nine justice court. Over ten years ago, I proposed a reform of the supreme court that would expand it to 19 members.

The constitution itself does not specify the number of justices, and that number has actually fluctuated through the years. The nine-member court is a product not of some profound debate or study, but of pure happenstance. In fact, when the court first convened in 1790 in New York, at the Royal Exchange Building, it had six members. After that time, the size of the court expanded and shrank – largely with the number of federal circuits. Since justices once “rode circuit” and actually sat as judges in lower courts, Congress would add a justice when it added a circuit – or reduce the court with the elimination of a circuit. Thus, when a 10th circuit was added in 1863, a 10th justice was added at the same time. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of a court.

Ever since the supreme court rested at nine members, we have repeatedly had problems of 5-4 splits, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. We often find ourselves captive to the idiosyncratic views of a couple of justices’ views on privacy, or federalism, or free speech. We also have had repeated conflicts over replacing justices because the importance of each jurist is so overwhelming on such a small court.

9 thoughts on “Turley To Speak To The Seventh Circuit Bar In Chicago”

  1. Like the other two branches, the Supreme Court has defined upwards its own powers, as if the voters couldn’t be trusted to make that decision themselves. Stare decisis is just one example of this self-serving power grab. But it’s worse in 5-4 decisions that demand a massive change of traditional behavior of the American people, which they passively accept. To start off, 5-4 decisions – where one “swing” justice has the power to do this – should not be treated with the authority that we allow them to have. We should limit the holding to the parties involved ONLY. The circuits should not accept 5-4 decisions as binding on them.

  2. good luck with seeing your Cubbies play. Hope they win and you might get to see more of them.

  3. I know many attorneys who have had cases before the 7th Circuit. They have the tension of appearing but always enjoy the trip.

  4. Cubs/Dodgers. I LOVE baseball, but it is killing itself. The Dodgers/Nats 9 inning 4-3 game last night TOOK FOUR AND A HALF HOURS!!!!

  5. Our Constitution seems to be a reactionary document designed to prevent the abuses/persecution from Roman Catholicism and the Church of England. Today, even with the death of Scalia there is (somehow) a majority of Roman Catholics on the Supreme Court – which is troubling to me. Do these Roman Catholic Justices value our separation of church and state – or is their allegiance to Rome? Justice Alito scares me…

  6. It is solely politics that dictate the Court shall only be comprised of nine Justices. Expanding the Court is sorely overdue. It is another example of politics before reason.

  7. The Supreme Court’s Crucial Mistake About Sex Crime Statistics ‘Frightening and High’
    It is very important that you read the abstract below and then the full 12 page essay by Ira Mark and Tara Ellman.

    ABSTRACT This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case. The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts. This paper appeared in Constitutional Commentary Fall, 2015.

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