Thursday, April 4, 2019
Tinkering around with the American governmental structure has become a standard plank for campaigners during run-ups to elections. The latest structural idea some are revisiting is the number of judges on the Supreme Court. George Washington University law professor Johnathan Turley has a laid out a plan to increase the Court to nineteen.
Turley describes this increase not as court-packing but as a cure to the partisan lock that has become fairly predictable. With more justices, this lock would be eased and the "swing-vote" would not hold so much power in close cases. Turley says the Court may still split but the swing vote would probably not be the same justice every time. In some instances, we have become accustomed to cynically saying that arguments before the Court only have to persuade one person - most recently that person was Justice Anthony Kennedy - since the other justices were so predictable. When viewed from this perspective, it does seem a circumvention of justice when one person can hold so much sway over the decisions of the Court.
Turley makes the point that the number of justices on the Supreme Court is not mandated by the Constitution. The reason we have nine today is because there were nine circuits in 1869, and that's where it has stayed for no real reason except tradition. Turley would increase the Court to nineteen, and two justices would sit on the lower courts each year in order to keep in touch with reality (Turley says "so they don’t lose touch with judging in the litigation brawl that precedes a case that rises to the Supreme Court"). In the build up to fully staff the Court, each president would not be allowed to appoint more than two justices during his entire term. Turley arrives at the number nineteen because he says that is the size of most of our appellate courts and they work well when sitting en banc.
Glenn Reynolds, University of Tennessee law professor, agrees with increasing the Court, but actually advocates for a mega-court of fifty-nine judges! He says keep the nine already presiding, appointed by the president, and add one for every state, appointed by the state governor. Reynolds says this will allow for a more diverse bench and one not as subject to the political winds as is the smaller insular group of nine. Reynolds has also advocated for elections for the justices. He says that the Court has already become politicized, so elections to ten year terms would make the presidential election turn less on Supreme Court appointments. Several states already elect their supreme court judges (most recently Wisconsin).
Personally I remain sentimental and tend to be attached to tradition, so am not immediately interested in these proposals. But admittedly, as Turley notes, our Supreme Court is the smallest of any major nation, and the ideological lock is a real concern. Since there are no Constitutional rules about the size of the Court, and it would be only engrained practice that would need changing, revisiting the size of the Court may be an idea whose time has come.