Judge Richard Posner Declares Support For Supreme Court Expansion Proposal

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.






53 thoughts on “Judge Richard Posner Declares Support For Supreme Court Expansion Proposal”

  1. We don’t need advice hoc justices.
    Constitutional justices are quite sufficient.
    Hence my number is 7.

  2. The number of judges isn’t as important as term limits for the justices.

  3. The People have dominion. The Supreme Court is effectively sovereign, untouchable and autonomous and it behaves as such. The scope of proposals regarding the Supreme Court must be to bring that institution under the direct dominion of the representatives of the People. Justices must come to understand that they do not operate in a vacuum.

    When you begin to grasp that the American Founders gave the power to the People, you will recommend eliminating the possibility of biased, ideological, corrupt and subjective decisions by the Supreme Court. The executive and legislative branches are controlled by the People through the vote. There is no immediately effective control on the SCOTUS. Having multiple judges is a duplicitous and circuitous course to affording the judicial branch the power to legislate.

    Reduce the Supreme Court to one judge facilitating oversight by Congress as impeachment.

    Enhance, strengthen and accelerate the impeachment process.

    The founding documents are written in clear English which all Americans can understand. The Supreme Court may perform its function of deciding if actions comport with the Constitution. When the Supreme Court acts in subjectively with manifest political bias in “judicial overreach,” Congress must impeach employing a strengthened and accelerated process.

    “Legislating from the bench” is not simply a trite phrase, it is an insidious and egregious act of treason.

  4. The court can select it’s cases to hear. If they fancy they’re overworked, tell them to be more selective. The simplest way to get ‘more turnover’ is to shoot a few of them.

  5. The ought to be one Native American Indian from a Reservation who is appointed to one seat and replaced by another one. I suggest, for the first one, a Cherokee.

    1. Stop! Native American is an impossibility and an oxymoronic contradiction in terms.

      Indians are Asiatic nomads who came here around the Alaskan Land Bridge before America was created in 1789.

      Asiatic nomads cannot possibly be “American” as they came to this continent long before America existed.

      Which brand of idiocy do lazy, greedy, striking teachers union thugs indoctrinate America’s children with these days?

  6. I don’t want to read 19 opinions on the same case. Or a maj opinion and 8 dissents. Too many Indians spoil the broth.

    1. Issac, we could have done that, but then all our friends would be speaking German.

  7. Adding members to the present configuration of the Supreme Court doesn’t necessarily add diversity or benefit and I question its need. The Constitution is a document that might not always represent the best law can offer, but following it is the Supreme Court’s responsibility and that responsibility is limited. Improving the law is what is what amendments are for, to change the Constitution. Judges should be expert in interpreting what the Constitution says and meant.

    That might seem cruel to some, but judges on a lower bench have the opportunity to negate the law and Congress has the opportunity to do this with a Congressional act or by Amending the Constitution.

    What we probably need is a division of the Supreme Court that handles the most technical and difficult problems such as the SEC where the laws are voluminous and difficult to understand in the constext of the Constitution. Some might suggest a healthcare division (Judge Posner alluded to difficulties in this sector), but corrections in the judicial system could easily be made to correct the many problems, especially the difficulties involved with expert witnesses whose testimonies too frequently depend upon who is paying the bill. Additionally more appropriate apportionment of the damages is needed in that sector.

  8. How many federal court of appeals (areas) are there? Twelve plus District of Columbia Court of Appeals?
    How about one Supreme Ct Justice hailing from each territorial district. Odd number of course so as to break ties. No bow ties either. Don’t want fruits on the Court.

    1. Dunno – but a larger SCourt would work to the advantage of lawyers representing clients there. I’m sure that thought hasn’t even entered JT’s mind.

  9. 19 judges would offer the possibility of a broader representation of the populace. Just as multiple parties would, removing all concentrated private funding of elections, special interest influence, etc. The formula demands representation through informed individuals voting. At this point individuals make no difference as representatives, after elected are bought and paid for and do the bidding of the oligarchs and special interests. Individuals are anything but informed. How else would this idiot Trump be President. He was elected on jingoes and the basic rage of the insignificant. Right now all Trump has going for him is that he is lashing out at everything and anything; somewhat like a lot of people.

    1. “Individuals are anything but informed.”

      That is correct and that is why we vote for a leader who then has the opportunity to take advice from the experts. In the case of Trump, that is who the people voted for and he is a person who knows how to deal with experts.

      The people were tired of self serving politicians that break the law and service themselves. Most recently we see that happening with Debbie Wasserman Shultz who had the audacity to threaten the D.C police chief in an attempt to protect alledged criminal activity. Look at those who voted for Trump that the former leader of you party called the deplorables. Look again Isaac they are the people that actually work and pay taxes. Who are the oligarchs and who do the oligarchs mostly deal with today? The Democratic Party so your responses are quite wrong and very self serving of what you believe rather than what working people believe and the entire population voted for.

      1. Allan

        Sooner or later, you will come to realize that what you described as that special one to deal with all the problems, is a fraud and a hopeless moron. Along with the vitriol, which can be found absolutely anywhere in politics given our system of oligarchy, hypocrisy, and pandering, comes a certain obfuscation of reality. If one reality is surfacing it is that what Trump said he was and what he is are not the same thing. He said he was the one to fix it all. He is a blithering idiot.

        1. You mean like the other “fraud and a hopeless moron (I would insert a caveat, but, after all, SHE did lose to the person you have labeled as such, so I’ll leave it stand). Along with the vitriol, which can be found absolutely anywhere in politics given our system of oligarchy, hypocrisy, and pandering, comes a certain obfuscation of reality.

          People chose the guy who worked deals outside the system of government, not the one who used government to become wealthy and successfully live above the law. Only when you can put down your personal biases will you understand (but we know you can’t).

          Not a Trump Fan.

        2. “Sooner or later, you will come to realize “

          It’s been one year with zero implication of the President who you call a moron. You have to be an idiot to call a successful businessman a moron and that probably equates with only half the extra IQ points Trump gets over you.

          Moron= IQ 26-50
          Idiot = IQ 0-25

          I spelled this out to you because I doubt your knowledge base even recognizes the difference in the terms.

          I wait for you to prove Trump is a moron. Your statements are partial proof that your intellect is negatively effected by your blind ideological adherence.

  10. Regardless of the size, the number should be even. We give great credit and great deference to our founders in many of their products and decisions, but we ignore the fact they started with six justices. It’s reasonable to believe they understood tie votes would leave things as they are and one-vote majority decisions would be highly controversial. With an even number–absent rare recusal situations–there would be two-vote or more differences in decisions.

  11. I wouodn’t make it 19, maybe 11. Not sure that expanding the size of the court at all would lead to better decisions, though.

  12. This is one of the few things about which I agree with Turley.

    But why 19?

    1. It would be odd to have an even number and will never be even if there is an odd number.

      1. An attempt at clever but why not another odd number? Say 101?

        1. That number is taken- there are already 101 Dalmatians.

          Have you ever argued a case before 101 Justices?

  13. For one use all the ‘rogue courts’ assigned by Congress to the executive branch along with the rogue legislator all of which comprise the Fourth Branch could be assigned back to their proper branch and along with the current circuit and appelate courts brough under some sort of control WITHIN their proper branch. instead of allowed to run amok. Same with the rule makers brought back under the Legislative Branch. An example would be IRS with it ‘s separate court system and rule writing system on down to Bureau of Land Management or EPA.

    The benefits are the ‘experts’ would be on hand to advise and not working for or in some cases unsupervised and laws would not be open ended without the additions being considered and voted on as an amendment requiring a majority vote and a Presidential Signature and without in the case of legal proceedings the guidance of the actual judicial system. 19 would allow for perhaps four to six to be Supervisory Judges. and provide and immediate replacement pool for the duties of the Supreme Court level.

    Which would ascend is still a matter of nomination and confirmation but the rigors of the procedure would or should at that point be behind thus ‘what’s his name’ the one Congress rejected out of hand and Gorsuch among two to four others would be ready to go.

    That also satisfies the Constitution. IMHO One might not see a Judge from Hawaii whose state has rejected all but three immigrants being able to pass a law that applies nationiwide. That is just plain lack of supervision of a junior employee on the part of the Senior Supreme Court.

  14. The justices just have to decide to work over the summer like the rest of us. This 3 months off stuff just doesn’t cut it. If we cut their salary for the 3 months we might get some work out of them.

      1. David Benson – school teachers either work or go to school for the summer.

          1. David Benson – many, because they all have to have their masters to keep their certification. And most want those coveted summer teaching jobs.

            1. In New York, they’re allowed to work for 5 years on a five-course certificate, and expected to complete the 16 course master’s program. You do not have 35 year old teachers taking summer teachers’ college courses unless it’s a 2d career for them.

              Some paint houses during the summer, some do not. The median cash salary for a school teacher in this country is now $59,000 a year, and that figure does not include the generous fringes.

              1. DSS – don’t be fooled by median or mode or your state. What is the starting salary in your district for a BA? No experience. Find the poorest district in your state and find the salary there.

                In Arizona you have 2 years to get your Masters and unless you land in an elite district, you will be working summers for sure.

                1. DSS – don’t be fooled by median or mode or your state. What is the starting salary in your district for a BA? No experience. Find the poorest district in your state and find the salary there.

                  Why would I look at the poorest district in the state unless I was attempting to cherry-pick an example to make a deceitful argument? The median describes the experience of the typical teacher.

                  The cash salary of teachers earning at the 25th percentile of the national sample is around $45,000. Generally, those who teach special education or vocational courses do a tad better than ordinary teachers. Those who teach older students do a tad better than those teaching younger students. It is childcare workers who receive wretched compensation (about 1/2 what schoolteachers are paid comparing the 25th percentile of each). The cash salary of those earning at the 10th percentile is about $38,000.

                  1. DSS – you have to stop playing with numbers and work with actual people and districts. California and New York skew the national figures because they have to pay their teachers more since the cost of living is higher there. Special Ed and math teachers are often at a premium so they get paid more. If you work for a school district, the union has negotiated a salary ladder that increases your salary every year you are teaching there. Usually for each 6 college credit hours you receive you move to a new ladder. You can do this until you reach you Ph.D.

                    If you work for a charter school, there is no union, no ladder. Raises are on merit. Beginning salary is what they think your market price is. Benefits depend on the school.

    1. I suspect that the justices are plenty busy during the summer recess. There is more to do than just listening to argument.

      1. David Benson – they have teams of baby lawyers to read briefs, write drafts, etc. It is not like they are working underground in the coal mine.

        1. The word in the papers at the time was that Wm. Rehnquist left work at 4 or 5 in the afternoon because he knew what he thought, and David Souter was at work at 10 in the evening because he didn’t. Seems like an IQ for time exchange.

    1. So only lawyers in Chicago get treated to his insults.

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