Jonathan Turley: Supreme Court Should Have 19 Members

[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.