I have previously discussed the legendary career of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit. Widely viewed as the father of Law and Economics, Posner remains one of greatest influences on American jurisprudence in the history of this country. I have long been a great admirer of his work and teach his theories as part of my torts course. It is for that reason that I was delighted when my co-counsel sent me the interview below where Judge Posner expressed support for the proposal that I have advanced for many years to reform the Supreme Court. Posner agrees with the proposal to expand the Supreme Court to nineteen members.
As many on this blog know, I have long advocated the expansion of the Supreme Court rather than age-based limitation (here and here and here and here). I have spoken around the country on this proposal for many years. In my view, our court is demonstrably and dysfunctionally too small. Congress has the authority to expand that Court and it should do so along the type of staggered plan laid out in the proposal where the Court would be gradually increased to avoid any president being able to stack the Court.
An objective review of our Court and those of other major nations shows obvious benefits for a larger Court with more regular turnover of members. Our respect for the Court should not blind us to such benefits, particularly since the Court has been both smaller and bigger than its current size throughout its history.
It is gratifying to have the voice of Richard Posner in support of the proposal. Posner is without question one of the most influential living legal figures. His work on economics and law proved transformative for the field. His books in various fields are considered classics. If you want to see how influential, I have copied some of his publications below.
- 1973 Economic Analysis of Law, 1st ed.
- 1981 The Economics of Justice, ISBN 978-0-674-23526-7
- 1988 Law and Literature: A Misunderstood Relation, ISBN 978-0-674-51468-3
- 1990 The Problems of Jurisprudence, ISBN 978-0-674-70876-1
- 1990 Cardozo: A Study in Reputation, ISBN 978-0-226-67556-5
- 1992 Sex and Reason, ISBN 978-0-674-80280-3
- 1995 Overcoming Law, ISBN 978-0-674-64926-2, Among the topics is a critique of Robert Bork‘s constitutional theories, review of books about the legal system in the Third Reich, and a discussion of the legal culture reflected in the works of Tom Wolfe and E.M. Forster.
- 1995 Aging and Old Age, ISBN 978-0-226-67568-8
- 1996 The Federal Courts: Challenge and Reform (2d ed.), ISBN 978-0-674-29627-5
- 1996 Law and Legal Theory in England and America, ISBN 978-0-19-826471-2
- 1998 Law and Literature (revised and enlarged ed.), ISBN 978-0-674-51471-3
- 1999 The Problematics of Moral and Legal Theory, ISBN 978-0-674-00799-4
- 1999 An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge, Mass.: Harvard University Press, ISBN 0-674-00080-3.
- 2001 Frontiers of Legal Theory, ISBN 978-0-674-01360-5
- 2001 Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3
- 2001 Breaking the Deadlock: The 2000 Presidential Election and the Courts, ISBN 978-0-691-09073-3
- 2002 Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
- 2003 Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
- 2003 The Economic Structure of Intellectual Property Law (Harvard Univ. Press) (with William Landes), ISBN 978-0-674-01204-2
- 2004 Catastrophe: Risk and Response, ISBN 978-0-19-530647-7
- 2005 Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, ISBN 978-0-7425-4947-0
- 2006 Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, ISBN 978-0-7425-5127-5
- 2006 Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 978-0-19-530427-5
- 2007 The Little Book of Plagiarism, ISBN 978-0-375-42475-5
- 2007 Economic Analysis of Law, 7th ed., ISBN 978-0-7355-6354-4
- 2007 Countering Terrorism: Blurred Focus, Halting Steps, ISBN 978-0-7425-5883-0
- 2008 How Judges Think, ISBN 978-0-674-02820-3
- 2009 Law and Literature, 3rd. ed., ISBN 978-0-674-03246-0
- 2009 A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression, ISBN 978-0-674-03514-0
- 2010 The Crisis of Capitalist Democracy, ISBN 978-0-674-05574-2
- 2010 Economic Analysis of Law, 8th ed., ISBN 978-0-7355-9442-5
- The Federal Trade Commission, 37 U. Chi. L. Rev. 47 (1969)
- A Theory of Negligence, 1 J. Legal Stud. 29 (1972)
- The Economics of the Baby Shortage: A Modest Proposal, 7 J. Legal Stud. 323 (with Elisabeth M. Landes) (1978)
- Statutory Interpretation – In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983)
- The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998)
- Pragmatism Versus Purposivism in First Amendment Analysis, 54 Stan. L. Rev. 737 (2002)
- Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005)
- Foreword: A Political Court (The Supreme Court, 2004 Term), 119 Harv. L. Rev. 31 (2005)
53 thoughts on “Judge Richard Posner Declares Support For Supreme Court Expansion Proposal”
hum….totally different group dynamics with 19 vs 9. How many different cliques would we likely end up with? would 10 ever agree?? LOL At the rate the Republic is destabilizing, this is probably just a rhetorical exercise anyway.
As long as a majority agrees on a decision it would work.
Richard Posner, along with Anthony Kennedy, is the most dangerous legal mind in America as his latest book amply demonstrates.
Dangerous to what?
Additionally, I’d restrict the number of justices per presidential term.
Number appointed? Good point.
David Benson – how about splitting the workload? The 9th Circus has like 19 justices, including some vacancies. Only 3 sit on any one case. If the aggrieved party doesn’t want to take it to the SC immediately, they can ask for an en banc hearing and if the justices agree, 9 justices (drawn at random) will hear the case. We could do the same with the SC.
Each case could be heard by 3 justices and decided by them. If there was a problem, the entire court would hear it. Court could still stay at 9.
It’s taken me awhile but I see the logic of having a larger court.
Comments are closed.