Waiting for this week’s Supreme Court decision on Obamacare, which most folks expect to strike down the mandate and perhaps the entire law, George Washington University Law Professor Jonathan Turley argues in the Washington Post that the court should be expanded from nine justices to 19.
FDR, no doubt sitting up in his grave listening for details, would find Turley’s suggestion of allowing each of the next five presidents to choose two new justices very politic, even sneaky.
One reason to add more justices, Turley hazards, is the damage caused to popular government when controversial issues are decided narrowly. Predicting a 5 – 4 vote on Obamacare, he unaccountably thinks it would be less controversial to then give the President two new justices so that this law (or other Obamanisms) would be upheld 6 – 5.
If I have my arithmetic correct, there can be legal cases decided by a single justice with any odd number of justices … nine, eleven, 13, 15, etc. That is why we choose odd numbers, if not odd justices.
Prof. Turley is correct, however, in addressing the awesome power of each Supreme Court justice, the fierce political battles each nomination now engenders and the ensuing politicization of the Court. He simply applies the wrong medicine.
A better reform would be to end lifetime tenure for justices on the High Court (but not for lower level federal judges). By requiring rotation no one could lock in a majority on the court for decades without sustained majority support of the people.
Turley informs us that 60 percent of the public already favors this approach. But the Washington elite? No such support.
This is Common Sense. I’m Paul Jacob.
3 replies on “Reform Follows Function”
The Founding Fathers foresaw a problem with the Court becoming politicized WHICH IS WHY THEY SAID LIFETIME APPOINTMENTS – SO THAT JUDGES WOULD NOT BE BEHOLDEN TO THE PREVAILING WINDS.
And, by the way, Obama HAS appointed two justices.
The only president in recent decades who didn’t was Carter.
In asdition, we might add that any +1 decision isn’t a decision, but rather becomes the Court DECIDING the law instead of interpreting it. This idea that the Constitution is obscure is fallacious. It us NOT. It was written in plain language and is about people governing themselves. We’d do better with a solid majority from a court that consisted Buckley-style, of the first 100 people out of the phone book than a 5 – 4 split.
“each of the next five presidents”
That could mean it would take as many as forty years for the court to grow to nineteen justices.
I wouldn’t end lifetime tenure but I would set a minimum age requirement to be a Supreme Court justice. How about sixty? (Given the nature of their job, I could see a minimum age of sixty-five.) A seat on the Supreme Court should be the culmination of a career. Unless justices are willing to die on the bench, for most it would effectively limit their time to about twenty years — more than twice the tenure of presidents.