In a Washington Post op-ed, George Washington Lawprof Jonathan Turley posits a solution to the two-prong problem of the lack of public approval (and therefore trust) in the institution of the Supreme Court of the United States, and the net result of the law of the land turning on the vote of one individual, as reflected in the steady stream of 5-4 decisions. Expand the court to 19 justices.
Before we rear back in shock, Turley points out that our current number of nine isn’t magic, but a quirk of fate.The power of the Supreme Court will always be controversial because of the fact that the justices are the final word in legal disputes. Justice Robert Jackson wrote in 1953, “We are not final because we are infallible, but we are infallible only because we are final.” An individual’s view of the court can depend on whose ox is being gored by its decisions; a “judicial activist” is often just a jurist who doesn’t do what you want. Any Supreme Court of any size will always render unpopular decisions. It is supposed to. Federal judges are given life tenure to insulate them from public opinion, so they can protect minority interests and basic liberties.
The nine-member court is a product not of some profound debate or study, but pure happenstance. The first Supreme Court had an even more ill-conceived number of justices: six. In fact, when the court first convened in 1790 at the Royal Exchange Building in New York, only two justices were present (fortunately, it had no cases on its docket). After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once “rode circuit” and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit.If one were to identify a critical stage where things went awry, it’s when Congress relieved the justices of their unpleasant duties of riding the circuit, thus disconnecting them from the outside world so they could remain in the quiet comfort and sanitary surroundings of their inner sanctum at One First Street. Unlike the primary players in the other two branches of government, no Justice need touch another human being ever again to remain robed, which explains why its Purell budget is so low.
Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter.
So nine isn’t magic, but why 19?
In essence, the reason is that this larger number has worked for the circuits, so why not the Supremes? By increasing the number, it decreases the relative power of any individual justice, though whether 19 god-like figures will be more humble than nine remains an open question. Turley bolsters his argument by proposing that no President get to appoint more than two justices, and that the larger number will allow justices to be required to sit on circuits again, forcing them to engage in the unpleasant task of seeing how their decisions ruin lives.While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. Just because we settled on the number 9 arbitrarily does not mean that any number is as good as any other. A court with 19 or so members have been shown to work efficiently where a larger court would likely be unwieldy. Appellate circuits are often divided between liberal and conservative judges. Yet, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.
We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands.For those of us who are occasionally critical of the Supreme Court, sometimes going so far as to suggest that they aren’t doing the job for which they’re paid, or that a nation is ruled by one swing vote, the idea that change is needed doesn’t meet with knee-jerk resistance. While my view of what’s wrong differs markedly from that of non-lawyers, who are more inclined toward confirmation bias than doctrinal utility and intellectual consistency, we can all agree that it’s doing a bang-up job at the moment and hasn’t for many years.
But is expanding the Court to 19 the answer? Or will more justices mean nothing more than a new wing to the building and a court bound up in the same old problems, issuing decisions that still fail to provide fully conceived guidance and, perhaps, still decided by a swing vote (or even a swing cabal)? The obvious answer is who knows? The problem is that to give it a try and see is to commit to a hundred or more years of a shot in the dark in the hope things do better. If not, we’re stuck with them for a very long time, and the opportunity to improve a branch of government to return it to both functionality and touch with the consequences of a hopeful nation are lost. A lot of harm can be done in a century.
Where Turley focuses solely on quantity, with the expectation that quality will be achieved as a necessary by-product, some additional concerns remain unaddressed. First, that our Supreme Court Justices have long lacked the diversity of knowledge and experience one would desire from such a small but powerful group. It’s filled with Ivy Leaguers whose worldliness spans the full gamut from academia to government service.
There is no more isolated and elitist group to be found anywhere, and yet they’re charged with making decisions based upon their understanding of why Ma and Pa Kettle, not to mention their tat-riddled kid, J-Kettle, behave as they do, and how changing the rules would change their lives.
That nine such disconnected souls have no clue how their fanciful theories apply to real people doesn’t necessarily provide much support for the assumption that 19 similarly clueless and cloistered pensioners will know better. Without a compelled change in the background of those appointed, so that they are required to have spent a significant portion of their careers holding the dirty hands of real people, and wiping the tears of children whose lives have been permanently altered by a rule punishing them for having done no wrong, it’s unlikely that the number of votes will change anything.
The number of justice sitting on the Supreme Court is not inviolate. Neither are their qualifications. Without justices who grasp the awesome significance of their decisions to a nation filled with real people, I fail to see that an increase to 19 justices will suffice. We not only need more, but better. And better means real, as in justice who are part of the real world that the rest of us enjoy and suffer every day.
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I think a requirement that justices actually be lawyers with a substantial period of actual practice would serve us better in the long run. I’m not talking about having corporate or government clients, either. I’m talking about representing living, breathing human beings who go to court knowing they’re going to have to live with whatever happens that day, whether it means jail time or losing your kids or getting thrown out of your apartment.
There’s a counter-proposal that would have at least one-third of the court be non-lawyers. This, it is argued, would do a far better job of keeping the court in touch with the people than any group of lawyers and/or legal-academics could do. The only barrier is the ABA, which is proving itself less of a barrier every year.
As there’s no actual requirement that the Justices be lawyers, this isn’t impossible.
Great idea. After all, if one extreme is bad, why not go to the opposite? What could possibly go wrong?
Suppose there were 15 judges and ten were lawyers and five were not. Something is seriously wrong if lawyers don’t argue so the odds are there will be a five to five split among the lawyers and three or more non-lawyers will decide all cases.
I am sorry but that does not seem to be an improvement.
Interesting proposal. It might help alleviate the problem in which entire legal doctrines are shriveled and destroyed by a court that gets a resilient ideological majority (see, Roberts Court and the Exclusionary Rule).
Also, Scott wrote:
“There is no more isolated and elitist group to be found anywhere, and yet they’re charged with making decisions based upon their understanding of why Ma and Pa Kettle, not to mention their tat-riddled kid, J-Kettle, behave as they do, and how changing the rules would change their lives.”
So many poignant examples of this, though the two that come to mind are Scalia’s opinions in Hudson v. Michigan and Whren v. United States. Kennedy’s opinion in Florence v. Board of Freeholders was equally detached. Only someone who’s never been in the thrall of law enforecment could possibly interpret Fourth Amendment “reasonableness” as encompassing the right to strip search someone for failing to use a turn signal.
I didn’t claim is was a great idea, only that it was an idea that was being thrown around. Lots of ideas are poor ideas. But knowing what arguments one will face is often useful.
Don’t take it personally. Just saying it’s an awful idea, not your awful idea.
One way would be to adopt the Athenian approach: select the justices by lot. For example, selecting the justices by lot from all members of the federal bar would give you a quite acceptable and legally qualified court, if you increased the size to the time-honoured number of 501 (like the court that convicted Socrates).
A truly “democratic” (in the original meaning of the word) way to assemble the SCOTUS would, however, be to select it by lot from the crowd gathered in front of it every mornging: 501 lot-selected volunteers who came to First Street One to sit as justices that morning. That’s the way Athenians selected all their courts, and even if their country ended, it was not due to dysfunctional judicial branch.
That’s actually a very interesting idea, though it would produce a remarkably unstable system, as courts could produce diametrically opposed results every other day, according to its makeup. Some would suggest that’s not a bad thing.
If you randomized the judges on a short time scale you will lose the ability to predict the outcome of the case. But my impression is the “experts” ability to predict court outcomes is not very good so it may not matter.
The vikings in Iceland used to elect judges at there annual “Thing” but they tried to elect people they thought were both wise and honorable.
In fact, if the number of judges is large enough, the random variation is relatively low. Thus, statistically, you would get about the same result from day to day with the same trial speechees, witnesses and facts, provided that the pool of voluntary judges remained the same.
In Athens, the daily pay of a judge was about two thirds of the pay of a day labourer. This resulted in a “judicial demography” that was markedly older and more conservative than the popular assembly: the volunteers were either independently wealthy or old and incapable of physical labour. Athenian courts had a judicial review function (they could invalidate popular assembly decisions that were against the law), and even there, the conservative courts were a check on the more radical popular assembly.
In practice, the greatest danger in this system would be private court-packing. It would be relatively easy for a powerful party to flood the “justice pool” on the morrow of an important case.
I think this could be hybridized into the Constitution without need for an amendment, but it would limit the judge pool substantially.
Article II says we need a chief justice to preside at impeachments. So that has to stay, and they’d need to be a permanent member of the court.
But the balance of the court could comprise district/circuit judges who were randomly chosen. Perhaps instead of the justices riding circuit, every year various district judges would ride Supreme.
In this system then, the judges are still selected by the same quasi-democratic process, still entitled to the constitutional protections regarding tenure of office, but are very likely to have a clear idea of what the real impact of their rulings will be. Not that federal judges aren’t an elite group, but they at least see a large number of cases and get to view firsthand the cruelty that can be present in the system.
I have some questions about the way SCOTUS can operate now.
1) If a judge is idle because of illness or conflict of interest can they be replaced by a retired judge?
2) If there is one idle judge and can they randomly select a second judge to idle to reduce the number of judges to seven?
3) It is possible to have randomly selected three, five and seven judge panels?