HOW TO [REALLY] CHANGE THE SUPREME COURT: THREE REFORMS THAT COULD MAKE FOR A BIGGER AND BETTER COURT

Supreme Court

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.

 

58 thoughts on “HOW TO [REALLY] CHANGE THE SUPREME COURT: THREE REFORMS THAT COULD MAKE FOR A BIGGER AND BETTER COURT”

  1. I didn’t add in three more for SCOTUS and then four more years to go not counting pence.

  2. 9th Circuit has four empty seats. I believe the total the circuit and appellate courts have a total of 15 empty seats. If they somehow rotate more out of 9th circuit that leaves more empty seats in 9th circuit.

    With the immigration and border protection project on temporary hold and the Scalia Replacement going to take several (meaning four to seven) weeks seems like a good time to slam the left with the 15 lower court appointments. Here’s another point. IF a nominee is turned down there is nothing to prevent President Trump from re-appointing the same individual.

    Given that how much time are the Democrats willing to let their present incompetent leaders waste and how much bacon and hog slop are their districts going to lose as a result.

    Seems like a good time to start open recruiting of the IDC prone presently in the House and Senate. If you can’t nuke them one way use the BOHICA Bomb and don’t spare the sand. With luck Schumer and Pelosi could get nuked on a weekly basis.

    Starting with blocking federal grant money on the sanctuary business. Napa County home of Pelosillyni is currently sucking in the recently restored 3.5 million just from Housing and Urban Development. another 32 million for roads and another batch from Army Corps of Engineers. That’s a rich county …let them eat kimchee for a while.

    1. Michael Aarethun – there are more judge on the Ninth Circuit to begin with because of the population of people under them.

      1. I noticed some of them only have four or five. But Four More is better than no more. There’s four years left to go and then some and it looks like that one is about ready to have a heart attack. The old demented lady.

  3. “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.”

    This statement really stood out for me, our lower courts made up of incompetent attorneys sitting the Bench is completely against the people and their rights.

    1. LC in Texas – I come from the Ninth Circuit, most overturned Circuit in America. I do not want any of them rotating onto the SC.

  4. The present members of The Court had a discussion recently which was recorded and posted on-line. Kennedy was the only one who knew where Kansas was. Roberts thought it was East of Corfu. That is where the Ten Commandments never apply. It was a death penalty case.

  5. I think it is a superb idea. I having been thinking a change is needed. This would be perfect.

  6. We tried that for a 100 years and then did a counter revolution and went back to a representative democracy as our foundation and a Constitutional Republic as our system. No need to keep foreign philosophies or systems that have failed everywhere. Seig me no heils Comrade We no longer serve the party.

  7. The Supreme Court, whether nine or nineteen should be as far removed from politics as possible. In this dysfunctional system of bought and paid for representatives offering two choices, one more than a dictatorship, Supreme Court Justices appointed by the power of the moment remain well beyond the people, for whom they exist, evolve. Imagine a pro slavery justice hanging around after the constitution has been changed. Imagine anti women’s rights justice hanging around after the constitution has been changed.

    Somehow the appointment of justices must be divorced from politics. With the country divided almost equally, sometimes severely and sometimes not so severely, it would make more sense to have each side appoint alternately and equally, the justices. The thought that goes into appointing a justice should not come from just one person who happens to be President. When a justice can be around for thirty plus years, he or she must be vetted more carefully than that.

    With nineteen justices and greater participation by the two sides that exist in the US, there would be less chance for scenarios arriving where the court is left or right leaning for decades. This would also increase the opportunities for candidates from other legal backgrounds, universities, segments of the population. A court of nineteen could easily set up focus courts to deal with issues peculiar to specific aspects of the law, with some sort of oversight.

    In short, the court should be a functioning part of government, as independent from politics as possible, and composed of as much representation of the people as is possible. This country can do so much better, only if it would review the ‘sacred words more often’, like the more advanced and successful democracies.

    1. “More advanced and successful democracies?”

      Did you have any in mind for us to relate your comment to?

      1. Without confusing the ‘We’re number one.’ and leaving aside the number of aircraft carriers, look at our peer nations that have multiple parties, are less dependent on concentrated wealth in arriving at candidates, have voters who are vastly better informed as to the issues, have systems that are no where near as oligarchical, etc. Do some reading for yourself and you may be less inclined to cherry pick faults and failures with these systems and more inclined to compare and contrast more successful democracies with our oligarchy. Now, leave the patriotic ego aside for a while and forget the size, population, GDP, etc and concentrate purely on the function. The US system does not represent a democracy but an oligarchy. If ever that was more obvious it was with the selection of the last two candidates for President. Money and circus are simply not that much of a determining factor in the more successful democracies. If money and circus are how you determine your idea of a democracy then?????

    2. Issac,
      Were you making the same argument at the time Obama was nominating three Supreme Court Justices? When you have two left feet it will always be uncomfortable adapting to a right shoe on your other foot.

      1. Just twice as expensive he was born that way. and walks around in counter clockwise circles.

      2. The argument stands, regardless of whether the President nominating the candidate is from the left or the right. I rarely wear shoes. When I do, they fit just fine, straight down the line.

        1. You dodged the question so I went into the way, way back machine (Turley archives) to see how principled you are. I didn’t have to go very far:

          issacbasonkavich
          1, December 2, 2016 at 9:17 am
          The reality of this situation can be seen through the eyes of legal historical self gratification or as what it really is, power mongering by the Republican traitors in Washington at the expense of the people. On record, preserved for all time, are statements by traitors like Mitch McConnell and other Republicans stating that regardless of whether it is good for America or not, if it comes from Obama it will be opposed, obstructed, and if not stopped, delayed.

          This is a vastly more interesting and important interpretation of what is going on. For the past six to seven years the American people have come in second behind the treasonous power mongering strategies of the Republican party. It’s all legal, by the way, but ask yourself what is the purpose of leaders if not to create a better environment for the people?

          This sick interpretation of government has just eclipsed itself with Trump and his $7,000,000 photo opportunity as defender of the working man as he fills position after position with Wall Street cronies, financial backers, and other elite. This could be a band aid on an open sore that just might evolve into what is really necessary, cooperation between government, labor, and corporate as in Germany or more of the same grandstanding by the country’s greatest charlatan ever.

          https://jonathanturley.org/2016/12/02/the-scalia-vacancy-and-the-supreme-court/#comment-1568170

          1. Olly

            DDT’s track record disqualifies him being President more than anyone available. He was elected based on his matching words, poorly constructed, jingoistic, more often than not lies, and buoyed up with exaggerations and hypocrisy, with the rabid mob. If ever there was an example of a person not qualified to be President and at the same time an extremely successful carnival barker, i.e. ‘You just happened to be coming along at the right time….’, it is DDT.

            However, take the person with all the qualifications, such as Bernie Sanders or Vice President Biden, or even Kaisich. Even then their words must make some sense. The words and the person must be seen to have value both separately as well as together. Politicians are an oxymoronic bunch. On the one hand they must reflect the voter but on the other hand they must lead and make decisions, that which the voter is ill-equipped to make. They must lead the voter and at the same time reflect the voter.

            A crystal clear example of leading in an idiot like manner is Jim Inhofe. In response to Bernie Sanders’s air tight arguments for the country to mitigate at some level pollution and its effects, Inhofe’s response was that based on the polls he did, nobody seems to care so he is against taking global warming concerns past the purely argumentative/discussion phase, or against doing anything to reduce the carbon footprint of these here United States of America. Inhofe’s hypocrisy is a clear example of a politician defaulting to the representation aspect of a leader and failing to lead for the best interests of the country, representing only the special interests up those whose bu * his nose is buried.

            A clear example of leading in a responsible manner that may not reflect the national views/wishes, is when the three stooges invaded Iraq. The war was unnecessary but if it were necessary it was bungled from start to finish and will remain a thorn in our side for some time to come. Saddam came to power through a coup and could just as easily been removed through a coup. Destroy, from afar, their navy, air force, and army installations one by one with a promise that if some other hapless individual takes him out and works with the West, then…..

            A leader is almost nonexistent. Essentially a representative is just that, someone who can read the public, regardless of how wrong the public may be, and say exactly what that public wants to hear, and no shortage of exaggeration, lies, and some one to blame.

            That is why, it is important, Olly, to divorce what is said from what was said and/or the person speaking. Imagine for a moment you weren’t on a witch hunt, attempting to bushwhack a contributor, to find fault, for whatever reason. Focus on the words and then comment.

            1. To sum it up issac is not what anyone could possibly called and objective or even rational resources. Quoting himself saying nothing is a dodge from Radical Reasoning and the Secular Progressives Handbook and carries no weight. We are still waiting for something on the order of any sign of facts, sources, cites, sites for anything.

              When Isaac writes only the left wing extremists pay attention. Why? To make sure his daily programming from party central is working.

              1. Michael,
                I’m always grateful when Issac uses his DDT reference earlyou in his post. It means I can dismiss is comment earlier than usual.

                1. I do that from the get go. If I want to know Carville, Lykoff, and Soros opinions I’ll ask them direct or just read the google up the appropriate quote from Lenin.

            2. issac – some day, with enough psychiatric counseling, you will get through this. You might even learn to like it, just as some prisoners like jail.

              1. What’s the score!

                Read something when the left was in they lifted the 60 vote deal on all courts below SCOTUS. IF that ‘s true there’s one A Bomb and 15 seats to fill while their ditzing around on the immigration thing. Phase one is done There’s no injunction on phases 2, 3, and 4.

                  1. Watch the news on the in house rebellion reported on Politico. Either they get hung for fake news or a lot of former government employees will be hitting the bread lined. It involves using an app calle SIGNAL to encrypt messages but then using it between government agencies as a part of ani in house rebellion. Felony charges apply just for what was just related. and add conspiracy, etc etc etc decryption not needed just evidence of unauthorized transmission or reception and if the Patrioit Act is used they are desaparecidos.

                    Used office furniture anyone?.

                    1. The architects of the financial crisis and retirement mess have gained control of the President’s pen.

                    2. Strange comment. Politico was responsible for that mess to which you are referring? Or the individuals they dropped the dime on in the various agencies?

                      Never the less the local or in house investigative sub agency is inow involved, National Security Agency is now involved AND DHS is now involved. Under DHS anything goes there are no civil rights or union rules, NSA pretty much the same but the use of government equipment and/or time is involved and trhe discussion of government business and encrypting same is a major no no.and so forth and so on.

                      So either Poliico is going down or the people they charged with committing felonies.

                      Not rocket science now just straight poltice work for the detectives and cyber sleuths and all they need is was their a transmission or reception and was it unencoded?

                      Hss nothing to do with anything else. But with the hiring freeze the government coudl be getting awful small really fast.

  8. So how would it work if a football team had 19 Tom Brady’s or 19 Aaron Rodgers?

    1. Is that real football or the North American kind? As part of the entertainment industry at this point does it really matter?

  9. Why not require members of the 13 district courts to rotate every 2 or 4 years and no nominee for SCOTUS would be eligible until they had served on 3 or 4 different courts? If we can uproot our service-members and their families every 2,3 or 4 years, send them overseas unaccompanied, then these justices should be able to as well. They would benefit by working with rotating members on each court and get exposure to a broader range of issues and opinions.

  10. Real change: No more Harvard and Yale. Require jury trial experience in criminal and civil cases. Geographic diversity.

  11. I have read your proposal below and believe it is sound. The one concern I have is, how to avoid one political side from appointing all of the new members? How do we achieve any sort of fairness, or at least perceived fairness, if for example the current congress and president simply did this and named all of their favorite judges to the bench?

  12. I’m sure your need to change the Court isn’t prompted by you recent loss…

    1. RADA,

      No, I don’t think so, this has been a topic talked about for decades. There is no limitations to the number of Justices that are appointed to the USSCOTUS. Article III states nothing. Now Statutory Officials have compliance set forth.

  13. As I have said before, if you are going to expand the court then it should sit in panels, drawn at random. It doesn’t make any sense if there are 19 judges and just as few cases are heard.

    1. The main problem is gettting there. No political party will let a President from the other party pick ten new justices. FDR couldn’t get a maximum of six new justices added.

      1. This time that depends on the nmber of embedded RINOSs still in the Republican Party and they need to be identified and targeted in any case. The leftists don’t or didn’t seem to have a hard time getting the puppy dog RiNOS to cave on command when they had the power to run their single party with two faces system it took a full blown counter revolution to smash that unholy alliance. Don’t think it’ s over yet

        Crushing the Demcorats into splinters and kicking the wazoo out of Hillary took precedence but the Republican Rinos just stepped to the side – let Trump run his own campaign and to their credit did work down ballot picking up a lot of support the Democrats had abandoned. BUT they are still RINOs and used to getting their puppy chow as the right wing of the left.

        One more good ass kicking is going to be needed without doubt UNLESS they get the message and the signal will be something like making a coalition with the IDC breakaways and changing the name to something like Constitutional Reublic Party.

        None of us in the moderate center where lies the Constitution see any reason to turn down the heat and if it takes running them out or turning them into crispy critter so be it. Some people are incapable of learning. Way of the world. Little wooly peter does wonders and sends a clear message.

  14. Good ideas. I also think interoffic communications should be subject to FOIA. In this I mean, nothing should be released that goes to the heart of a decision unless an ethics issues is raised and the Judge insists upon being part of the decision panel. I agree with the two systems approach as this would lead to criminal cases be decided with specialized knowledge as well as criminal cases.

  15. Add Ivanka, Don, and Eric to the court and the results would be tremendous. Just phenomenal. At least fantastic. But mostly tremendous.

    Study the world. Did I say tremendous? You’re fired. Biggest crowds. Wow thank you.

  16. There must be two of these. Needed change is quit ignoring their responsibilities and get those Fourth Branch Rogue Judicial Operations under control and IN the Judicial Branch.

  17. A real mouthful.

    Don’t know that I agree that the current nominee couldn’t raise considerable havoc. While the Court occasionally over rules earlier precedent, to approve an Associate Justice whose view is that Progressives have so corrupted the foresight of the Founders as to require the overruling of cases like Roe v. Wade, is showing an absence of respect for the prior and current Court and therefore is not an appropriate fit.

    1. What if he wanted to overturn Citizens United? Something tells me your concern for respect would go flying out the window.

    2. Roe v Wade is a travesty and no one with an ounce of integrity endorses it.

      1. None of that needs overturning or changing. The courts came out and backed the Congress on the rights of viable citizenship and set the standards. Best of all the inhumane and barbaric killing of childrens while being born by using surgical shears to slice and dice the crowned head has been banned for some years. The Chinese system of a big syringe full of formaldehyde is probable far more humane

        Viability is the dividing line between right to choose of the ‘parents’ and rights of citizenship to be protected and not executed without trial and all the legal trimmings. Those who violate that including the mother should be tried for premeditted murder EXCEPT where a life of mother vs life of child situation exists and that verified by competent medical authority not some social scientist wanna be.

        Having thus given as much as possible to the one side and as much as possible to the other side no oe side gets the whole loaf and the real issue is “WHY did you wait nine months or even more than one or two. Beyond that give the issue with those federal standards in place back to the States where it belongs.

        1. Where does viability begin and end? I realize my posts about unalienable rights are routinely met with silence but the security of those rights are why this nation was founded. If the “viability argument is acceptable then further discussion on the viability of all life is not off the table. Is a 6 month old baby viable? 2 year old? 5 year old? How about my 99 year old grandmother who fell in her home 3 days ago and had to use her life-alert to summon emergency services for help?

          I know, crazy talk but are we better as a society allowing government to determine who’s natural rights are to be protected?

            1. That’s kind Paul, thank you. It so happens my mother called over there after getting notified that her mom had pressed the button. Somehow the phone got answered and was left off the hook and she could hear the paramedics and neighbor laughing with her, doing dishes, talking about taking out the trash, etc. 🙂 She’s doing fine. Again, thank you.

          1. It’s not easy to pin point as it is different for each pregnancy by the short version and the same one used by the courts is when it reaches a certain percentage of chances the of survival in the event of a premature birth. For example the six week rule recently sought in Texas was based on heart beat but found to be the heart beat of the mother’s sanguinary plumbing to the developing fetus.

            The court ruled it took opinion of competent medical authority the OB-GYN Doctors obstetricians etc. The general range is somewhere in the late second trimester. to the early third trimester. They excluded to wanna be scientists in the psychistric, psychologist and for sure the sociology areas.

            In any case it give Mother’s right to choose plenty of time and plenty of methods from morning after to full fledge abortion. BUT that option fails to consider the right of the parents plural. That seems to come more into play during the weeks of development when the baby had crossed the line from fetus to viable and gained the protection due to any citizen unable to protect himself or herself.

            Far from wishy washy it’s based on solild scientific and experienced medical science opinion. The weight of evidence of course falls to the child.

            As usual there are acceptable exceptions. They do not include fitting into a prom dress.

            So which people and whih people’s rights? Clearly when the fetus is viable that’s the only person whoser rights are under consideration. Taking the life of a citizen without due process is murder. End of conversation.

            Myself I’m not against abortion I am against murder. It’s not a hard choice Baby Jame or Baby John will face plenty of threats in their lifetime. They don’t deserve to be surgical sheared to death by some fiendish monster with a stethoscope and a diploma and a Hypocritical rather than Hippocratic oath.

  18. A question would be if the justices accepted a code of ethics or conduct who would be the enforcement arm? And, what sanctions could be possible?

    1. The same way any governmental body operates. You make rules, you assign enforcement to a committee and then the entire body votes on violations and sanctions. You can do everything from censure to expulsion.

  19. “Oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning.” — Robert H. Jackson

Comments are closed.