Nine Is Not Enough (Supreme Court)
When I get some time, maybe I'll do some statistical analysis, but intuitively it seems to me that having a Supreme Court of nine people with lifetime appointments results in a rather stagnant court, with a high probability of having disproportionate representation not only of things like gender and race, but even more significant, of legal thinking. Right now, we have four of the nine seats filled by men with very similar ideas, which significantly limits diversity of thinking. Worse, these seats may be occupied for years, preventing new ideas from reaching the court and possibly making the court's perspectives anachronistic as legal thinking evolves, but the court continues to be occupied by men with old, stale, and out-of-favor ideas.
Now some of this calcification is good--it prevents change from happening too rapidly--but maybe we should have some better balance between preserving the old and giving the new a voice? And also bring more diversity in thinking and background to our court?
How about increasing the size of the court? Nothing in the constitution prevents that and the Democrats are powerful right now and so may be able to do this. I suggest increasing it to 15, with 2 new seats opened during the Obama administration, and 2 new seats opened in each of the succeeding presidential administrations. (I know adding two seats during the Obama administration is a bit of a strong-arm tactic--the more politic thing to do would be to add the first two new seats in the next administration, but maybe the democrats should exert some muscle here? The republicans have been pushing them around for too long on these issues--hitting back might be healthy, actually, if not 100% fair.)
In addition to creating a more diverse and dynamic court, the addition of a few more justices might help ease the workload that weighs so heavily upon the current justices.
Let's hope the Democrats start thinking about this. It's a damn good way to spend some political capital.
Great ideas. This is the same reason Congress lacks authentic ideas. It is absurd to think that 535 people, mostly men and mostly lawyers, rule a nation of 300 million butchers, bakers and candlestick makers. There should be twice that many Congress people with a much more direct representation than currently exists when it comes to big ticket items. We have created a ridiculous system all around.
May 13, 2009 9:01 AM | Reply | Permalink
I believe that Roosevelt wasted alot of political capital trying to do this very thing. The supreme court kept blocking new deal legislation by the same 5-4 margin that bedevils us today.
I know that there is a small movement to install term limits and reorganize the supreme court by Paul Carrington and Roger Camden and a number of other law professors. They wrote a book Reforming the court: term limits for justices in which the propose eighteen year limits and new nominees every two years.
They keep the number at nine justices, but introduce the idea of a secondary system for less important cases that the elder judges would retire to after serving there term. This would both keep the main court intellectually alert and dramatically increase the number of cases heard (the number of which keeps falling as the court gets older). This proposal seems more politically feasible than a court packing scheme but would achieve similar aims.
May 13, 2009 8:57 PM | Reply | Permalink
Indeed Roosevelt spent too much political capital in an attempt to 'restructure' the scotus. Term limits would go a long way toward solving the problem, which I think would just be diluted by increasing the number of judges on the bench.
May 14, 2009 8:20 PM | Reply | Permalink
FDR did indeed attempt to pack the Supreme Court -- in an effort to ensure that parts of his New Deal wouldn't be ruled unconstitutional. Purely partisan. Expect that it will be used in both directions. Not a good idea.
The Supreme Court started off at 6 justices and grew to a maximum of 10, before eventually settling to 9.
I'll also throw in that while Congressional Officials aren't elected for life, that is usually what happens.
May 14, 2009 3:37 AM | Reply | Permalink
If you're uncomfortable with court stacking, you can avoid that by putting off the increase in justices until future administrations.
However, let's not ignore the broader issue: whether nine justices is really enough to ensure a reasonably representative court. I think increasing the number of justices has positive features regardless of the politics. Fifteen seems like a much healthier number than nine, creating a more diverse and vibrant court.
The right way to increase the number of justices this may be through constitutional amendment that fixes the number so that manipulating it for political purposes in the future is not possible (at least without another amendment).
Personally, I like lifetime appointments. I do think they help preserve the court's independence and I think there's an advantage to having long-serving justices who have first-hand knowledge of years' worth of decisions) I don't think the nomination process is very good, however, since it is particularly political and increasingly results in the appointment of highly ideologically oriented judges. I'm not sure I have a better approach, though. Maybe the president should be required to nominate a slate of three candidates and the senate then pick among those (or reject all and request a new slate from the President)? Maybe a three-fifths vote (supermajority) in the Senate should be required to approve a judge? I'd be interested in hearing other ideas.
A brief note on court packing: while it's generally not something I think is good for the country, one has to recognize that because we've had a string of Republican Presidents willing to nominate increasingly partisan ideologues of young age--and because the Senate has been a very weak foil to this--our court has been packed. One reason it's possible to pack the court under the current system is that there are only nine judges and therefore it only takes five appointments to stack the court. With fifteen judges, you'd need eight appointments. So increasing the size of the court makes packing more difficult.
May 14, 2009 6:52 AM | Reply | Permalink