Bad? This isn’t about particular decisions (though some have been really bad) or about particular justices (though there are a couple of real ringers). It’s just that the size of the Court and the way its members are chosen make for mediocrity at best. Jonathan Turley, legal scholar at George Washington, is very critical. He calls for reform. The Court is not sacred, nor did the framers see it that way.
For a start, its numbers should increase from 9 to 19, making it more like a circuit court.
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 and jurist 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. ...WaPo
Contemporary conservatives worry about “diversity,” preferring the self-serving notion of having a stranglehold on political power. But that’s not the way an American court should be allowed to operate.
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. …WaPo
The power of individual justices has undermined both the wisdom of recent decisions and made the Court worse than just unpopular. Polls show Americans now believe justices vote their politics and are often corrupted by special interests. The law of the land is, finally, sitting on its butt in a marble tomb, out of touch with reality. Worst of all, we let Senate committee deform the process of confirmation.
he 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. …WaPo
Cross posted from Prairie Weather