I recently published a column in the Los Angeles Times on reforming the Supreme Court with three fundamental changes that could be accomplished without a constitutional amendment. Below is a longer version of that column on the three reforms and their implications.
Donald Trump ran on the promise to “reinvent” government with new approaches and ideas. One of the institutions that Trump focused on the most was the United States Supreme Court and the selection of the replacement of Associate Justice Antonin Scalia. Yet, the addition of Judge Neil Gorsuch to the Court is unlikely to move the center of gravity of the Court. Indeed, even with the three justices who will be in their 80s during Trump’s first term, any change in legal doctrine is likely to be incremental. However, if Trump wanted to truly transform the Court, he should look beyond mere changes in personnel and address long-standing deficiencies of the Court. Here are three reforms that would greatly improve the Court as an institution and secure a lasting and worthy legacy for the 45th President of the United States.
EXPAND THE COURT
I have long argued for the expansion of the Supreme Court. For the first time, with both houses in the control of one party as well as the White House, this badly needed reform could be accomplished.
Our Court is demonstrably and dysfunctionally too small. The size of the Court is not established in the Constitution and it has been different sizes throughout history. When it first convened in the Royal Exchange Building in 1790, only two of six members showed up. It has been larger and smaller than its current complement of nine members. That number was largely accidental. The Court used to change with the number of circuits and in 1869 that number was 9. That’s it. We really never had a national debate on the ideal size of this key institution.
Ever since we moved to a nine-member court, we have had the problem of the single swing justice – a court of one. For years, the Court was effectively Sandra Day O’Conner on major questions like abortion or affirmative action or criminal justice. Now Anthony Kennedy plays that swing role.
Years ago, I recommended the expansion of the Court to 19 members – an increase that would occur incrementally with no president filling more than two new positions per term. That would bring the size of our court in line with the top courts of other countries. Those countries specifically adopted larger courts to avoid the concentration of power that we have in this country where one or two jurists can dictate sweeping changes. Germany has 16 members, Japan 15, the United Kingdom 12, India 31, and Israel 15. Spain has 74 while France counts 124.
Under my proposal, two justices each year would also return to the prior tradition of sitting on lower courts – a tradition that I believe was unwisely abandoned and has produced a Court seen as out of touch and at times arrogant. That would leave a voting court of 17 members (about the size of our circuit courts when they sit as a whole or en banc). There would be greater turn over for presidents and more importantly a broader expression of views. It would also reduce the recurring confirmation spasms. While it may seem counterintuitive, these positions are so few and thus so important that we tend to pick people who are not outstanding in their views or writings. Indeed, presidents look for nominees who have never uttered an interesting thought to avoid confirmation hearing problems. Our Court is too small and our justices are too powerful. It is time to expand the Court
CAMERAS IN THE COURTROOM
The Framers were such great believers in the need for justice to be done in public that they put it into the Constitution. The Sixth Amendment guarantees of public trials and the Supreme Court has noted that “[b]y immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.” Of course, when it comes to its own transparency, the Court is steadfastly in the dark. Justices have vigorously opposed cameras for years, even threatening to resign over the reform. The decision of Congress in response should be easy: order the inclusion of cameras and then thank the retiring justices for their service.
The Framers would have loved the concept of televised hearings. These were men who were fascinating by technology and new ideas. A simple technology that would allow any citizen to watch arguments would have been a no brainer for most Framers who heavily favored public trials. Instead, the Court makes people wait in line (some individuals even hiring line “sitters”) for days to get a relatively small number of seats in the courtroom. It is a ridiculous exercise that is played out every session of the Court, but Congress has not stepped in to end the lunacy.
When Congress moved to order cameras in 1999, the Court started to release audiotapes at selective arguments. It simply made the situation more bizarre. There is a technology to allow citizens to not just hear but see every argument, but the Court continues to act like supreme troglodytes. Notably, the objection some Justices have made is not the fear of grandstanding by lawyers but by their colleagues. In 2007, Justice Anthony Kennedy objected that “[i]f you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a soundbite.” Denying the public the right to see the hearing of their highest court to protect justices from temptation is not a particularly compelling argument. Congress should waste no time and bring this facially absurd debate to an end. Congress needs to order the access of C-Span coverage of every argument before the Court.
ETHICS ON THE COURT
The Supreme Court is not just an island protected from modern technology but an island protected from judicial ethics. Both are by design of the justices themselves. In a self-serving interpretation, justices have long insisted that, since no lower jurist can possibly judge their conduct, they cannot be subject to judicial ethics like all other judges. It is an interpretation at odds with the highest courts of other countries. It is also at odds with common sense.
The Justices insists that they can only be their own judges and that they have voluntarily agreed to “refer” to the Code of Judicial Conduct for guidance. Often it appears that the justices honor the code primarily in the breach. Justices routinely appear in public speeches where they have discussed pending issues and cases. Justices have attended political fundraisers and have ruled in cases where they or their spouses have financial interests.
Congress should require the adoption of a formal code of ethics, including a process by which citizens can file complaints against justices. For those justices who insist on remaining their own judges of conduct, they have the same option as camera-phobic jurists: they can retire. In Federalist 10, James Madison observed that “No man is allowed to be a judge in his own cause.” However, there are nine such people who demand precisely that unilateral power when it comes their own ethics.
Despite our collective respect for the Supreme Court, it should not blind us to its flaws. These three reforms would transform the Court into a more diverse and dynamic institution. If Trump truly wants to think “bigly,” he should give us a bigger and better court.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Constitution and the Supreme Court.