Jonathan Turley: Supreme Court Should Have 19 Members

[Tx4obama]

That way, the fate of health care (and other issues) won’t be in the hands of one person:

While the best number is debatable, I believe that a 19-member court — roughly the average size of a circuit court — would be ideal. 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.

http://www.alan.com/2012/06/24/jonathan-turley-supreme-court-should-have-19-members/

Longer article here: http://www.washingtonpost.com/opinions/the-fate-of-health-care-shouldnt-come-down-to-9-justices-try-19/2012/06/22/gJQAv0gpvV_story_1.html

[Drale]

1. Lets just make the Supreme Court another house of Congress

with 100 members like the Senate.

[rhett o rick]

33. Take away their power for judicial review that they gave themselves.

It is not allowed by the Constitution.

[onenote]

35. Who would take it away, how, and what would be the result?

Leaving aside the issue of whether Judicial review is "allowed" by the Constitution, how do you propose to take away the judiciary's role in that regard: do you think Congress can pass a law that strips the court of that authority (without the court holding that such law is itself unconstitutional)? Do you think there is any chance of a constitutional amendment to strip the court of judicial review authority? And if the court was stripped of judicial review authority, how would the constitutionality of laws passed by Congress be deteremined? For example, if your proposal became a reality and a future Congress, not withstanding the 13th Amendment to the Constitution passed a law allowing people to own slaves again, would there be any recourse?

[rhett o rick]

38. Those are all good questions except the last.

Our founders didnt give the SCOTUS the power of judicial review because they didnt see that it was needed. And it would give that branch more power than the other two branches. IMO they felt the people should be the ultimate deciders. If Congress and the President passed laws that were unpopular, the Congress and President could be voted out of office and replaced by others more representative of the people.
Today the SCOTUS can, as shown in the Citizens United case, actually strike down laws with precedent and essentially reshape legislation. Once they have ruled, the people have only the recourse to amend the Constitution.

Chief Justice Madison gave the SCOTUS the power of judicial review without involving either of the other two branches.

[onenote]

39. The last question is an extreme example, but that doesn't mean it shouldn't be answered

If Congress passed a law declaring that Christianity was the official state religion and that church attendance was mandatory, what would be the recourse if the courts could not strike that law down on the grounds that it conflicts with the First Amendment? How would a person escape being punished for disobeying a law that is at odds with the Constitution.

Feel free to substitute any example you feel comfortable answering: a law banning abortion at any time after conception with no exceptions. A law allowing warrantless searches of any non-caucasian male. I could go on, but you get my point -- if the Supreme Court, in ruling on whether a person was properly charged with a crime, cannot determine whether the law on which the charges was based was a valid exercise of legislative power under the Constitution, what is the recourse?

[rhett o rick]

42. Sorry, I didnt mean it was a bad question. I meant that I dont have a clue for

your other questions, but I have an opinion re. the last.

It sounds like you are looking to the SCOTUS as the savior. They can be but they can also be activists for conservatism. The Citizens United is a good example. Congress and the President made laws that were popular with the people and the SCOTUS overturned those laws and set a precedence that cant be overcome without a new court or a Constitutional Amendment. I fully expect them to do the same with Roe v. Wade.

While the cases you presented are extreme and highly unlikely because of the way Congress is made up, they still could happen. If they did, the people could change out a significant portion of Congress within two years and the President within four years. On the other hand, the SCOTUS could rule that it is Constitutional to allow Congress to establish a State Church and the people would be near helpless to change it.

[onenote]

45. If the Constitution isn't enforceable, what is the point of having a Constitution?

Having a Constitution that establishes certain limits on the power of government (and in other instances confers authority on the government) is somewhat pointless if its not enforceable. I'll go to another example. THe Constitution provides that one is supposed to be protected against unreasonable searches and seizures. If a court can't find that a law giving the police unbridled authority to search someone with no warrant and no need for any showing of reasonable cause, and someone is searched and found to be in possession of evidence of a crime, if the court can't pass on the constitutionality of the search, the doctrine of being protected in criminal cases from the use of the "fruit of the poisonous tree" goes out the window. To say that the electorate could rise up in a couple of years to elect new legislators who would then repeal the law to make it consistent with the Constitution is small solace the folks sitting in jail for years waiting for that to happen.

[rhett o rick]

46. The Constitution is only as good as the SCOTUS interprets it.

It does not have a unique interpretation. Over time the interpretations have changed and will continue to change. Let's look at the case of US citizen Jose Padilla. He was taken off the street and taken to a secret prison where he was tortured without any due process. His family didnt even know where he was for a long time. A clear violation of the Constitution AS YOU AND I INTERPRET. But what did the SCOTUS have to say????? If you dont know, look it up. They didnt rule in favor of the American citizen. The SCOTUS can and has done terrible damage to our democracy all in the name of the Constitution. By the way, the Patriot Act allows searches without warrant. The NSA wire taps without warrants. Where is the court? I think they ruled that corporations could not be held accountable for violations of the Constitution on illegal wire tapping during our war on terrorism.

I hope I am wrong, but I see this SCOTUS doing much more damage to our democracy before they are done.

[Hippo_Tron]

43. Bush vs Gore and Citizens United aside, I'd much rather have even this court doing judicial review

Today's ruling on mandatory life sentencing for juveniles is a perfect example. Sometimes a majority passes laws that trample on the rights of a minority. That's why we need courts to sometimes thwart the will of the majority.

[rhett o rick]

47. There is no guarantee that the SCOTUS will do what you think is the right thing.

I am not saying that the SCOTUS doesnt get it right some time. But why are you putting aside Citizens United? They overruled precedence. What will you say when they reverse Roe v Wade?

[rhett o rick]

49. I think you might find this interesting reading.

http://www.democraticunderground.com/1002857148

[Manifestor_of_Light]

36. It is allowed by Marbury versus Madison, 1803.

That's been 209 years.

You get your law degree at Costco?

[rhett o rick]

37. If snark is all you got, go away and try bullying someone else. nm

[Manifestor_of_Light]

40. So read Marbury versus Madison.

It establishes the concept of judicial review. The concept that case law opinions can be used to strike down or modify statute law.

[rhett o rick]

41. I have read Marbury vs. Madison. And I agree it establishes judicial review.

IMO it isnt based on the Constitution. Madison made a ruling that tipped the balance of power greatly in his own favor. He did it without Congress, the president, and without the citizens. Now the SCOTUS can literally craft legislation as they did this week re. Arizona. The final bill isnt what was approved by the state but what was carved out by the all powerful SCOTUS. And citizens have little recourse. The Citizens United ruling which overthrew precedence and was against the will of the people, against the will of Congress and the President, was made by five people. Five people changed the law and we have no real recourse.

[Hippo_Tron]

44. "Crafting legislation" is a populist misnomer

Have you ever read a Supreme Court opinion? They don't just decide these cases based on what they think is right and wrong. There's a huge amount of legal reasoning that goes into deciding which provisions to strike and which ones to keep. The conclusions that Justice Scalia comes to via legal reasoning are substantially different than the conclusions that Justice Ginsburg does. But that reasoning in both cases is far more complex than "I agree with this law or I disagree with this law", which is how political bodies make law, not how courts
rule on its constitutionality.

Law is an incredibly complex subject. That's why we require lawyers to go to school for three years and pass the bar exam before they can practice it. And judges usually have to practice it for many many years before they can become judges.

[PoliticAverse]

2. Chance of Congress changing the court size in the next few years, how close to zero ? n/t

[libinnyandia]

3. Maybe someday the SCOTUS will be a real issue in the Presidential elections and the left will be

united against the Republican candidate.

[BlueCaliDem]

24. That's what I'm hoping for, too. One day . . . one day. eom

[gmee2]

25. It is important now

There are 4 judges over 70, two of them liberal
Ginsburg 79 and Breyer 73.

The next President were he to last 8 years would probably replace 2 if not all 4

[Swede Atlanta]

4. I disagree..........

The issues taken by the Supreme Court are USUALLY very important and seminal to our society. While I think 9 is too small, I would suggest something in the order of 11 or 13.

The larger the Court becomes the more unwieldy. The smaller the court, as now, the more critical that one vote or justice becomes. When justices sense that power, I am sure they love to exert it. I am convinced that Sandra Day O'Connor loved being the "swing" vote on the Court for years. I'm sure she was able to curry favor on any number of cases by promising to give or to withhold her support.

19 is simply too large but I think the current 9 is too small.

[DallasNE]

12. Slightly Larger Has Merit

Because vacancies would occur more frequently. I would also fix a manditory retirement age, but since it is an August body, I would put it on say their 85th birthday. Further, I would set the number at 12. That would require a 7-5 vote in most cases, although a 6-5 vote could sometimes happen.

[Raster]

13. I concur. Nine justices is far too easy to "partisan lock," witness the Felonious Five and their...

...hideous ruling in Gore v. Bush. That term of the SCOTUS was a setup.

[progress2k12nbynd]

16. I understand your point but why would a SC judge...

need to curry favor on a case? If any judge stands to personally benefit in a unique way from a decision they should have recused themselves from the case before it ever got there.

[mazzarro]

20. Then why are the appelate courts not unwieldy? -- n/t

[former9thward]

23. Appelate courts are almost always 3 judges sitting as a panel.

The losing side will often ask the full circuit to hear the case. Most of the time that request is turned down.

[MightyOkie]

5. Who cares what Turley says?

Sheesh, he's one lawyer in a country of hundreds of thousands. If I'm a lawyer, do I get my own thread if I oppose it?

[drm604]

19. Yes. You can start your own thread to oppose it. You can do so even if you're not a lawyer.

You're opposed to people starting threads?

[grasswire]

6. didn't Roosevelt appoint more members or consider appointing more?

???

Isn't it the prerogative of the POTUS to appoint more than 12?

Gonna have to google this.

[grasswire]

7. here it is

On Jan. 30, 1937, Roosevelt's 55th birthday, the president disclosed to his closest aides a draft bill to reorganize the federal judiciary. The measure -- mischievously linked to a long-ago proposal by 75-year-old Justice James C. McReynolds -- called for all federal judges to retire by age 70. If they failed to do so, the president could appoint another judge to serve in tandem with each one older than 70.

The practical effect of the proposal: Roosevelt could have appointed six more Supreme Court justices immediately, increasing the size of the court to 15 members. A Congress dominated by Democrats undoubtedly would have appointed judges friendly to Roosevelt and his New Deal agenda.

Doomed at the outset

Top aides suggested alternative judicial reforms -- a constitutional amendment allowing a two-thirds vote of Congress to overrule Supreme Court rulings, for example -- but Roosevelt would not budge. He also downplayed worries about the disingenuousness of his message, which said his bill was the best solution to an alleged judicial backlog rather than a justified attack on an unruly Supreme Court.

Roosevelt pitched his plan to Congress and the public Feb. 5, and the futility of his quest quickly became apparent. Republicans like Herbert Hoover, whom FDR ousted in the 1932 presidential election, accused Roosevelt of attempting "to pack the court." But the president's political enemies did far less damage to his cause than his friends.

According to FDR biographer Frank Freidel, House Judiciary Committee Chairman Hatton Sumners (D-TX) made this ominous statement to colleagues about his support of Roosevelt: "Boys, this is where I cash in my chips." Other conservative Democrats expressed similar sentiments.

Sen. George Norris (I-NE), who had empanelled a national conference on judicial reform soon after Roosevelt's inaugural, announced his opposition to the court-packing bill, as did liberal Sen. Burton K. Wheeler (D-MT), who ultimately became the measure's most vocal foe. Even liberal Justice Louis D. Brandeis, the oldest member of the court, privately expressed his opposition.

As the president's confidants had warned, opponents seized on Roosevelt's explanation of why the bill was necessary. William Allen White, one of the most renowned editorialists of his day, reached this conclusion Feb. 6: "Because he is adroit and not forthright, he arouses irritating suspicions, probably needlessly, about his ultimate intentions as the leader of his party and the head of government."

Still confident that he could win the public's backing despite opinion polls that indicated otherwise, Roosevelt ignored much of the criticism. In a March 9 "fireside chat," he acknowledged his true intentions -- to create a Supreme Court that could "understand these modern conditions" -- but it had no measurable influence on public opinion.

Support began to slip after Senate Judiciary Committee hearings later in March, and by June, Roosevelt reluctantly agreed to a compromise that would have allowed him to name just two new justices. But it was too late. On June 14, the committee issued a scathing report that called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principle … without precedent or justification."

More at link: http://www.enterstageright.com/archive/articles/0799fdrcourt.htm

[grasswire]

9. was that the same people who attempted a military coup against FDR? n/t

[Tx4obama]

8. See the first two paragraphs on the link below

http://www.washingtonpost.com/opinions/the-fate-of-health-care-shouldnt-come-down-to-9-justices-try-19/2012/06/22/gJQAv0gpvV_story_1.html

[beyurslf]

10. I think Justices shouldn't serve for life.

This would stop appointing justices who are young (all of Bush's nominees were under 50, and I think Obama's are too). 20 or 25 years would be a good limit. You would know when a justice was coming off. The term would last longer than the president who did the appointment and longer than that president's vice (if he or she served 2 terms). You could even say the justice could choose to serve one additional year--for instance, in an election year, a justice may choose to wait. If a sitting justice were made the Chief, he or she could have 15 years or the rest of their original term, which ever was longer. Reappointment would not be allowed once the term ended.

[BlueDemKev]

11. What difference would that make?

You'll still have a conservative bloc and a liberal bloc. Moderation no longer exists in America's political or judicial system today. Instead of 5 being the "magic number", it'll be 10.

[SunSeeker]

18. A larger Court would have a more diverse group's life experience to draw upon.

There are so many segments of American society that are not represented on that Court. Personal background, as much as legal or political position, determine a Justice's opinion. I've read enough Supreme Court opinions to know legal precedent is not determinative. The stated legal reasoning for the opinion always seems to be an after-the-fact rationalization for a pre-determined desired outcome---and the desired outcome is based on the Justice's life experience.

[Doctor_J]

21. Moderation no longer exists???

How would you classify Obama's ideology?

I think you might be listening to too much hate radio

[Doctor_J]

22. a single president wouldn't be able to pack the court.

the court would be represented by appointees from 3 or 4 or 7 presidents instead of 2 or 3

[freshwest]

14. If Obama is re-elected, I want him to 'pack the court' to overcome the same things FDR did.

As he says, after this election, I will be more flexible. Time to kick the tires and see what this car will do.

[onenote]

28. and exactly how do you think he can do that

Roosevelt had a Congress in which the Democrats had an enormous majority and his court packing idea blew up in his face.

[freshwest]

29. GOTV. Have you got another solution?

[onenote]

30. I'm working hard to ensure Obama's reelection

But I live in the real world and in the real world, there is no scenario in which the next Congress is so one-sided in favor of the Democrats that it would approve a change in the size of the SCOTUS. What would happen is that FDR's failure to "pack" the court would be brought up at every turn and the public perception would be against Obama in a heartbeat for trying to do something that wasn't considered a good idea when FDR tried it.

[freshwest]

31. I live in the real world, too. Did I say it was easy? Argue with the OP, not just me.

I made a comment supporting the OP.

Others have too.

EOM.

[bupkus]

15. Turley is to law

What Krugman is to economics.

+1 on 19 justices on the Supreme Court.

[Tuesday Afternoon]

17. I agree with Turley.

[jaysunb]

26. me too.....n/t

[onenote]

27. Several flaws in Turley's idea

First, the factual flaws. With its current make up, unanimous decisions occur almost twice as often as 5-4 decisions. And while there are certain patterns, not every 5-4 decision splits along the same lines. In addition, Turley's reliance on the size of the appellate courts is misleading. Circuit court decisions are made by 3 judge panels. On rare occasion, the cases are re-heard "en banc" -- by a larger panel of appellate judges. How rare? The circuit that hears more cases en banc than any other in recent years has been the 9th circuit and it still only hears about 2 dozen cases en banc --- and consider that this is only after the case already has been heard and the bar for overturning the original panel is quite high. Some circuits, like the 2nd, hardly ever hear a case en banc. And none of the circuits, except the 9th has 19 judges (most have between 11 and 17). The 9th has 29 judges, but when it hears case en banc only 11 participate.

Second, the practical problems. As noted en banc consideration of an appellate case, which Turley cites as support for his proposal, occurs very infrequently. The SCOTUS decides over 100 cases each term. What Turley doesn't acknowledge is that with a large bench, the workload actually will increase as each justice will have to address comments from more than twice the number of justices as present. The result will be a much slower process in terms of getting to a final decision and/or an even greater number of concurrences and dissents. One of the biggest problem the court has now is not 5-4 decisions, but rather the number of concurrences and dissents, which create uncertainty with respect to where the law stands. A recent case in point is one in which there was a majority for a particular outcome, but no majority for any one theory of how to get to that outcome. There actually was a majority that agreed that the plurality's theory was wrong, but some members of that majority agreed with the result reached by the plurality, not the reasoning. What Turley ignores is increasing the size of the court inevitably will increase that the number of situations in which an appellant or appellee might "win" a case, even though less than a majority of the court can agree on why that party should win. Not a healthy situation and certainly not one that will result in less controversy or more clarity in the law.

I suspect Prof. Turley is aware of all of these things, but since it doesn't fit his argument, he simply chooses to ignore them rather than address them. Which, sadly, is his style.

[DemocratsForProgress]

34. Thank you

for laying out your viewpoint so well. Best response in the thread, by far.

[grasswire]

32. I say: Dem packing SCOTUS equals 61 vote Senate tactic.

Don't bring a knife to a gun fight.

[morningfog]

48. Sounds good. Let Obama pick 10 more.