Huzzah! Halloo halleigh!
A renowned constitutional scholar and learned legal mind has come around to — and even expanded on! — my view on the size of the Supreme Court. Since the very early days of the Rehnquist Chiefdom, Americans have been treated to whining from atop ThirdBranch about the intense workload, the crushing case count, and the difficulty making majorities of more than a margin of one. A nine-month work calendar from which you can be home for dinner every night after being driven to and from work and guarded around the clock by federal agents, where ambitious, whip-smart young legal minds actually perform your job duties and you have a highly respected lifetime gig? And where you needn’t ever actually talk while on duty?
Yeah, that’s onerous.
But, because of the late Chief William Rehnquist’s constant complaints about not having enough Justices to cover the workload, I have previously proposed expanding the Court in a bill named in his memory: The William Rehnquist Memorial Court Workload Relief Act. It might be hard for right-wing originalists in the Senate to vote against this, named as it is for one of Arizona’s original minority-vote-suppressors.
Nowhere in the Constitution is the size of our nation’s highest court specified. In fact, as Jonathan Turley documents, SCOTUS’s first session had only two justices in attendance. Luckily, no case pended. Six Justices — during and after the Civil War — was way wrong, and Turley makes an excellent argument that in today’s busy, appellate-court-filled world, nine is of equal paucity. Grow, little SCOTUS, grow and thrive!
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.
He provides telling examples, both from America’s own appellate circuit and other Western democracies, that bolster his argument: SCOTUS is too wee:
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.
Turley, proposing 19 Justices, acknowledges the “how do we get there?” question by proposing that each [future?] president be allowed two [additional?] appointments in the expansion regime. Even allowing for successive one-term presidents, and exempting the incumbent as would only be fair, President Number 49 would complete the expansion, in his or her term that ends in 2037. Two-termers, if still limited to only two expansion fills, would stretch implementation even longer. And would retirement replacement nominations count against any president’s expansion quota?
Let’s face it, if this is a crisis — and it is, as Turley eloquently explains — America needs it solved sooner.
And should Obama, if elected to a second term, be permitted to start this sequence, maybe in the Senate’s Lame-Duck session?
I propose, if we are to expand SCOTUS by ten members, that ten potential new members be nominated by both Senate parties equally and nominated in a balanced, one-and-all-confirmation process, stand together or all fail. This will enable some extreme representation on the far left and right of the spectrum and will, perhaps, preclude partisan sniping about the composition of the entire group. Ha-ha.
Perhaps the next president should be able to choose six choices from his own party and only be required to pick four from the opposite Senate party recommendations, if the opposite party is in the Senate minority. This preserves a semblance of Executive preference. Maybe the Federalist Society should get to suggest ten, and the Trial Lawyers should get to pick ten, with the President required to pick five from each list, with an up-or-down no-filibuster Senate vote.
Many ways come to mind in order to accomplish this needed expansion more rapidly than Turley suggests. What would you do to get SCOTUS to 19, soon? How would you fill ten new Justices chairs? And where would they all sit, or would your newly enlarged Court ever sit en banc except on cases where they chose to?
More fun for Late Night is the casting. Who would you suggest for the Court? What wacky personnel ideas do you imagine the Corporatist/Religious Right would come up with? Do you think the list of twenty presented to the next president should range very widely? How far would your imagined spectrum stretch? From former Congressman Alan Grayson to current Congressman Patrick McHenry? From Maxine Waters to Jeanne Schmidt? From Orly Taitz to Gloria Allred? From Michele Bachmann to Glenn Greenwald? Judge Judy? Judge Napolitano?
The floor is yours.