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Jewish World Review August 26, 2003 / 28 Menachem-Av, 5763

Jonathan Turley

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One justice wields too much power on today's Supreme Court. It's time to make the top bench much bigger


http://www.NewsAndOpinion.com | When the U.S. Supreme Court first convened in 1790 in New York, it was very much a work in progress. After two centuries of change, the Court is now so revered as an institution that even suggesting a flaw seems unhinged or heretical. Yet the Court does have a fundamental structural flaw that becomes more evident with each term: It is simply too small.

On the nine-member bench, power easily concentrates in the hands of one or two justices. Many important questions are effectively decided by a Court of one.

This term, the crucial lawgiver was, once again, Sandra Day O'Connor. As the swing vote on an evenly divided bench, she has reshaped the country in areas like affirmative action and criminal sentencing. As in previous years, she seemed to abandon earlier positions to better fit her evolving views. Each year this leads commentators to debate the future of abortion rights, federalism, and other issues in terms of the shifting inclinations of Justice O'Connor.

Even if you agree [as I do] with many of O'Connor's conclusions, this concentration of power in one justice is anathema in a democratic system. We have become accustomed to a form of judicial autocracy, rejoicing in new rights and protections bestowed by O'Connor. It is time to remove the flaw that leads to such controlling power. It is time to make the Court bigger.

A COURT OF ONE

A quick review of the Court's cases this term clearly illustrates the problem. Almost 20 percent of the 71 published decisions resulted in 5-4 votes. In 12 of these 14 cases, O'Connor was a swing vote. And this is the continuation of a long trend of 5-4 decisions. This stagnant split tends to produce opinions of lower quality. All too often the result of a 5-4 vote is a majority opinion that focuses on ends rather than means. Indeed, O'Connor has been repeatedly accused of ignoring past cases to reach a desired conclusion. In fairness, she is not the only justice to forge a majority by ignoring conflicting precedent. A 4-4 split opens the door for an opportunistic analysis by the final justice.

The current division on the Court is due to the slow rate of turnover among the justices. This Court has sat together for nine years, the longest period without a new member since 1823.

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Less turnover may well become the norm with the increase in the healthy life span of the average American. Attorneys now routinely continue their practice into their 70s and 80s. And the job of a Supreme Court justice is hardly the most stressful. While individual decisions can certainly be momentous, the average number of actual cases heard by the Court has been steadily falling since William Rehnquist became chief justice. Certainly, justices have ample assistance in terms of law clerks and other staff. At 83, John Paul Stevens, the oldest justice, is a testament to the ability to judge well at an advanced age. All of this brings me to my annual ritual plea to increase the number of justices to 19.

The Constitution does not dictate the number of justices on the Supreme Court. In practice, it has fluctuated wildly from the original six. The Court has actually been through eight configurations, with a low of five and a high of 10. The current nine-member format was instituted in 1869. And that number has not been without critics. In 1937, Franklin Delano Roosevelt wanted to increase the number of justices to 15 after a conservative Court blocked his New Deal reforms. Roosevelt dropped his threat after the Court suddenly changed its obstructionist course, in the famous "switch in time that saved nine."

Roosevelt had the right idea for the wrong reason. The Court should be expanded not to pack it, but to unpack it. If the Court grew to 19 members, the relative weight of individual justices would decrease, and the likelihood of diversity in views would increase.

A COURT OF 19

An expansion would reduce the importance of individual justices -- i.e., the O'Connor problem. A 19-member bench would not eliminate the possibility of a single justice becoming the acknowledged swing vote, but it would make such a role less likely. A larger center would likely emerge, with four or five different justices casting swing votes. Of course, it is possible to have 10-9 splits on a 19-member Court. However, the greater diversity in views coming from more justices will lead to less-predictable divisions.

Some federal appellate courts have developed pronounced splits between liberal and conservative judges. Yet a review of the circuit courts shows more fluidity across issues. A given judge may be consistently conservative on federalism issues but less predictable on criminal justice issues. Many appellate judges have such voting patterns -- not unlike those of Justices O'Connor and Anthony Kennedy.

A larger Court would also reduce drafting time for majority opinions and possibly increase the number of cases being heard. With the current 75 to 80 decisions a year, an evenly distributed caseload would translate into each member writing roughly four majority opinions a year. The very light workload, compared to that of the overextended trial and appellate courts, might in turn encourage the Court to take more cases.

The expansion might also allow justices to resume a prior practice: hearing cases. In the early years, the justices would often sit as trial judges. While that practice has long since ended, the modern court system still encourages "designation" appointments for trial judges to sit on appeals courts and appellate judges to sit on the trial bench. This experience helps judges develop a better sense of the concerns of their lower or higher brethren.

Today, trial judges often complain that the Supreme Court is out of touch with the realities of the trial courts. If justices occasionally presided over real trials, this problem -- or perception -- would be greatly reduced.

There is probably less value in justices sitting on the appellate courts, but there is still some cultural benefit in strengthening communication and interaction with those judges. This is particularly true for justices who oversee a particular circuit.

Obviously, this is not a suggestion to return the justices to the crippling duties of actually "riding the circuits." But, even when these duties were largely ended in 1869, Congress still wanted every justice to sit on a circuit court at least once every two years, thus to get out of Washington and into the "real world." Indeed, when Congress specified a rotation of three justices every year to circuit duties, it viewed such duty as necessary to prevent the Court from becoming a "fossilized institution."

The expansion of the Supreme Court would not be administratively complex. A 19-member Court would be roughly the size of a typical circuit court.

A larger Supreme Court would be better prepared to handle a possible increase in the number of federal circuits. [There has already been discussion of dividing the U.S. Court of Appeals for the 9th Circuit in two.] Even today some justices must oversee more than one federal circuit. Chief Justice Rehnquist sits as the circuit justice for the D.C., 4th, and Federal circuits. Justice Stevens is assigned the 6th and 7th; Justice David Souter has the 1st and 3rd.

This double duty creates an uncomfortable concentration of authority in individual justices in handling emergency appeals. A 19-member Court would guarantee that no justice would oversee more than one circuit, and the chief justice could be removed entirely from this role. There is good historical precedent here. In the past, when another appeals court was added, Congress would often add another justice. Of course, this reflected the expectation that justices rode circuit, but it also demonstrates that the size of the Court was dictated by inter-court administrative concerns, as opposed to intra-court deliberative concerns.

SLOWER AND CALMER

An expansion would have an important tempering effect on Supreme Court precedent. A more steady turnover of members would bring new faces and views to the highest bench. Each president could be expected to make at least one appointment per term -- i.e., to have at least one chance to reflect on the high court the public values that led to the president's election. As a result, there would be a more gradual changing of direction, rather than the type of dramatic shifts associated with appointments like Antonin Scalia or changing positions of individual justices like O'Connor.

Perhaps equally important, an expanded Court may reduce the blood-letting over judicial nominees. Clearly, high court appointments will continue to attract political advocacy and controversy. But the relative importance of any given justice to the law would be greatly reduced, and the high volume of confirmations would render them more routine to both the media and the public. Just as most appellate judges go through the system without controversy, nominees to a larger Supreme Court would likely not set off the type of apocalyptic campaigns we've seen over the past decade.

Yet a 19-member Court also seems small enough to prevent the nomination process from becoming so routine that it lulls the public into a dangerous passivity. We need to find that delicate balance between reducing the significance of individual justices and maintaining a healthy interest in judicial confirmations.

HOW TO DO IT

The Supreme Court could be expanded through either a constitutional amendment or a statute.

The risk of the statutory approach is that once Congress breaks the current rule of nine, future members could view such changes as a way of manipulating or expressing opposition to the Court -- thereby raising separation-of-powers concerns. A constitutional amendment would avoid the danger of endless tweaking by Congress. By setting the number of judges in constitutional concrete, an amendment would also make clear the importance of this decision to the public.

But the easier approach would be for Congress simply to enact a statute. There is little basis for a constitutional challenge to such a law, particularly given prior legislation increasing and decreasing the size of the Court. The expansion would not make the Court less independent or interfere with its role as final legal arbiter.

With either a constitutional amendment or a statute, the law would likely stipulate a gradual increase to the full 19 members so that no one president would get the opportunity to appoint 10 justices. The next five presidential terms could be given two new appointments [excluding any replacements of retiring justices] to reach the final number over two decades.

Finally, an expanded Supreme Court is more likely to reflect the intentions of the Framers. James Madison and others were leery of the power of the courts to dictate policy. There is little question that they did not foresee the dominant role of the Court in overturning congressional legislation and dictating national policy. That role, forged not in the Constitutional Convention but by the Court's own hand in Marbury v. Madison, is now an integral aspect of our tripartite system. But the effective ability of a single justice to repeatedly force such policy changes would likely have shocked many of the Framers.

The brilliance of our system is that it gives the American people the means to correct such problems. The number of Supreme Court justices, like the size of Congress, is a natural subject for occasional revision. Clearly, the Framers did not believe that the specific size of the Supreme Court had to be fixed to achieve some essential goal of Article III. Today we should not be wedded to an arbitrary number either, but should set the ideal number after serious review and debate. Such a debate has never occurred in modern times; it is long overdue.

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JWR contributor Jonathan Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Constitution and the Supreme Court. Comment by clicking here.

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© 2002, Jonathan Turley