It could all be in the hands of just one justice. After a 14-month fight in Congress and an unprecedented challenge by states to the power of the federal government, the fate of health care in this country is likely to be decided by a 5-4 vote.
The same may be true when the court rules on Arizona’s immigration law and a sweeping free speech case.
As speculation and anxiety grow over these cases, Justice Ruth Bader Ginsburg recently alluded in a speech to “sharp disagreement” in the Supreme Court’s outstanding opinions, while saying that “those who know don’t talk, and those who talk don’t know.”
It’s not terribly productive to try to guess how the court will rule in these cases — we’ll find out soon enough. It’s far more important to ask whether “those who know” are too few and whether “those who don’t know” should demand to reform the court.
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.
But how many people should it take to come up with the final word on such questions? Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws. The deep respect for the Supreme Court as an institution often blinds us to its flaws, the greatest of which is that it is demonstrably too small. Nine members is one of the worst numbers you could pick — and it’s certainly not what the founders chose. The Constitution does not specify the number of justices, and the court’s size has fluctuated through the years. It’s time for it to change again.
A national poll this month showed that the public overwhelmingly opposes how the court functions. Only 44 percent of citizens approved of how the court is doing its job, and 60 percent thought that appointing Supreme Court justices for life is a “bad thing” because it “gives them too much power.”
Many people started looking critically at the court’s structure after the Bush v. Gore decision in 2000 — and the power that case gave to just five unelected individuals. One of the most disturbing aspects of the case was not simply that some justices appeared to depart from prior legal views but that the court insisted that its opinion could not be used as precedent and was “limited to the present circumstances.” Five justices did not want their reasoning used for anything other than selecting the next president of the United States.
The health-care decision comes 75 years after the famous “court packing” effort of President Franklin D. Roosevelt. As it is today, the country in 1937 was in the midst of an economic crisis, and Roosevelt was saddled with four conservative justices — known as the “Four Horsemen” — who opposed his New Deal. Three justices, called the “Three Musketeers,” were predictably liberal but could not carry the day against the Four Horsemen and Associate Justice Owen Roberts, who was often a swing vote.
Roosevelt decided to introduce a bill to allow him to appoint up to six additional justices. This could have led to a real crisis. But disaster was averted when Roberts voted to support a critical New Deal case and “Horseman” Justice Willis Van Devanter retired — the “switch in time that saved nine” moment for the court. However, Roosevelt may have had the right idea for the wrong reason.
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 1790at 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. Thus, when a 10th circuit was added in 1863, a 10th justice was added. In 1869, the court happened to have nine members for nine circuits. And that is where its size settled.
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. Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O’Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy.
Some proposed Supreme Court reforms seek to break justices’ hold by rotating these positions among federal judges, while others call for mandatory retirement dates. But I believe that many of the court’s problems come back to its dysfunctionally small size. This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.
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 19-member or so court has been shown to work efficiently where a larger court would likely be unwieldy. On appellate courts it is rare that one or two judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts have also proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.
The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench. Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations. Jurists are often selected because they have never said or written anything remotely provocative or even interesting. Many are chosen precisely because they are relative unknowns — such as O’Connor, David Souter, Clarence Thomas and most recently Elena Kagan. Bypassing clear intellectual leaders in courts, the bar and academia, modern nominees are picked as a type of judicial blind date. The chances that we could have a legal virtuoso such as Louis Brandeis or Joseph Story on the court in the current system are at best accidental.
How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover. This would allow greater variety and a more consistent opportunity for each president to name members to the bench. It would also decrease the importance of individual justices hewing so closely to party lines — potentially allowing nominees with broader experience and ideas.
An expansion might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints from lawyers and judges is that the justices are out of touch with the reality of legal practice. Having a 19-member court would allow two justices to sit on an appellate court each year by designation — and be forced to apply the rulings that the Supreme Court sends down.
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. The respect that most of us hold for the court should motivate us, not deter us, from reforming it. Just as the philosopher Jeremy Bentham called for “the greatest good for the greatest number,” sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University, where he teaches a course on the Supreme Court.