For the past four weeks, Senators and commentators have often used the most apocalyptic terms to describe the potential nomination of a rigid conservative to succeed Associate Justice Sandra Day O’Connor, the Supreme Court’s perennial swing voter.
While many have called on the appointment of an O’Connor clone, there has been no discussion of the danger of a court that invests such power in so few jurists. As we prepare for another bloodletting over the nomination of a new justice, Members, particularly in the House, should pause to consider whether it is time to consider long-overdue reforms of the court. Specifically, we should consider adding not one but 10 new justices to the court.
While the public views the court as an inviolate and revered institution, various academics have called for a range of reforms, from term limits for justices to limitations on their jurisdiction. Years ago, I suggested expanding the current number of Supreme Court justices to 19 members. This proposal was based on the view that our court is demonstrably and dysfunctionally too small.
The proposal to expand the court often prompts easy analogies to the court-packing scheme of President Franklin Delano Roosevelt in retaliation for the thwarting of his New Deal programs. Yet, it is possible that Roosevelt had the right idea for the wrong reason.
The current number of justices was arrived at not by some profound design but was a virtually arbitrary number that reflected the earlier number of federal circuits — a number that has since expanded by 50 percent.
Today’s court actually bears little resemblance in its size or powers to the original court created by the Framers. Indeed, when the United States Supreme Court first convened in 1790 in New York at the Royal Exchange Building, only two of six justices were present and it had no cases on its docket. The early court was smaller and its members actively “rode circuits” to hear appeals and even sit on some trials.
The current court shows the problems with a small Supreme Court. With justices living longer, the court is prone to stagnation, and presidents often face “feast or famine” periods on nominations. Many presidents have had none, while others, such as President William Howard Taft, have had four. President Bush easily could have three or more.
The result is that the court often has remained unchanged as society has changed. Roosevelt inherited the Hughes court, a court composed of elderly, Republican appointees disinclined to support New Deal reforms. (Hughes himself had previously left the court to run for president as a Republican.) Bush could now ultimately create a similar court filled with ultra-conservative baby-boomers who could remain to the right of society for decades to come.
Unfortunately, this is a concern that tends to motivate only the party in the minority. I should point out that I first suggested the expansion of the court when we had a Democratic president and Senate. We now have the opposite. Yet, we continue to go through these convulsions on nominations due to the unwise investment of great power in so few individuals.
The expansion of the court is not as radical an idea as it may seem. From the time of its establishment, the size of the Supreme Court was largely dictated by the number of lower courts. As new states were added to the Union and the population grew, new trial courts and circuit courts were created — and new justices added. For example, when a 10th circuit was added in 1863, a 10th justice was added at the same time. When the circuits were reduced in 1866, the number of justices was reduced. Ultimately, the creation of the current nine-number court in 1869 was part of a Congressional decision to create parity with the number of circuits.
While O’Connor’s career is being celebrated in the aftermath of her resignation, she actually personifies the inherent flaws in the current court. The Supreme Court’s past decade has been shaped largely by its ubiquitous 5-4 votes and wild swings of doctrine. As a result, the most important questions have been effectively left to a court of one: O’Connor (and to a lesser extent, Associate Justice Anthony Kennedy).
This stagnant division is due to the slow rate of turnover on the court. The current court is close to a record length of time without a change in membership. It has been more than 11 years since Justice Stephen Breyer was added to the court — the longest such period since 1823. This relative stagnation is likely to continue with the increase in the lifespan of all Americans.
The benefits of expanding the court to 19 members are multifold. Consider just a few:
• Expansion would reduce the likelihood of a single swing voter: The Court of One problem. While splits on larger appellate circuits do occur, it is less common for a single justice to be a swing vote on many issues.
• Expansion would reduce the relative weight of individual justices and increase the likelihood of diversity in views on given subjects.
• Expansion would reduce drafting time and likely increase the number of cases being heard.
• Expansion could allow for justices to return to hearing cases. One or two justices each year would have to apply some of the doctrines that they pass down and, in doing so, deal with the inconsistencies produced by their decisions.
• Expansion would bring administrative advantages. A 19-member court would be slightly larger than the number of federal circuits, ending the practice of assigning some justices to more than one circuit, which creates an uncomfortable concentration of authority in individual justices.
• Most importantly, the expansion would guarantee a more steady turnover of members, bringing new faces and views to the court. Each president can be expected to have at least one appointment, reflecting the contemporary political values that led to their election.
Of course, it would be improper for one president to appoint all 10 new members. Accordingly, the proposal allows for a phased expansion that adds the seats over a long period.
The slavish adherence to a nine-member court shows the triumph of tradition as a self-perpetuating value. It is time to test the current model on its own merits, not on its familiarity. The number of Supreme Court justices, like the number of Members of Congress, should be a natural subject for occasional revision. It is time to allow logic, not tradition, to take its natural course.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and teaches a course on the Constitution and the Supreme Court.