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.