As we wait, more or less impatiently, for the Supreme Court to announce its decision on ObamaCare, imaginations are running wild. James Fallows posted a blog with the title "5 Signs the United States is Undergoing a Coup." He came to his senses, after a fashion, and changed the title. He didn't do anything to make the post less stupid. I will bother only with his close:
Underscoring the point, a Bloomberg poll of 21 constitutional scholars found that 19 of them believe the individual mandate is constitutional, but only eight said they expected the Supreme Court to rule that way. The headline nicely conveys the reality of the current Court: "Obama Health Law Seen Valid, Scholars Expect Rejection."
How would you characterize a legal system that knowledgeable observers assume will not follow the law and instead will advance a particular party-faction agenda? That's how we used to talk about the Chinese courts when I was living there.
Well, you characterize it as a legal system in which 19 scholars out of a collection of 21 think that they disagree with the Court on an important issue. Constitutional scholars have every right to their opinions. The Supreme Court has the power to issue authoritative judicial opinions. That, Mr. Fallows, is the law. It may seem to you like a coup when the Court doesn't go your way, but it seemed much the same way to a town that was told by the High Court that it couldn't sponsor a non-sectarian prayer at its high school graduation. Comparing this to the Chinese system is five kinds of crackers.
Unlike Fallows, Jonathan Turley doesn't write stupid things. Turley argues at the WaPo for enlarging the number of justices on the High Court from 9 to 19. Ann Althouse accuses Turley of proposing a court-packing scheme. This is uncharacteristically unfair of Althouse.
Turley is not arguing for packing the Court with pro-progressive judges. He is making the familiar complaint that national political controversies are being decided by a lot of five to four decisions, meaning that one person (usually, Anthony Kennedy) is effectively making the decision for all the rest of us.
Turley correctly points out that the number of seats on the Supreme Court is not fixed in the Constitution and that many other nations have larger high courts. He makes the facially plausible assumption that a 19 member court would be less likely to divide 10 to 9 than a 9 member court 5 to 4.
On appellate courts it is rare that one or two judges consistently provide the swing votes on all issues when they sit "en banc," or as a whole. Appellate courts have also proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.
That Turley is not proposing a court-packing scheme is evident from this paragraph:
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.
It is hard to guess whether or how a larger court would work better than a smaller one. It seems clear to me that Turley gets cause and effect backwards here. We don't have large national questions resting on the shoulders of one judicial personality because the Court is evenly divided; rather, the Court is evenly divided because large national questions can rest on the shoulders of one judge.
Courts below the level of the Supremes rarely attract severe political scrutiny. However, since the nomination of Robert Bork, the balance on the Supreme Court has been the focus of as much passion as any national election. There is no good reason to think that this would change if the balance was ten to nine. One party or the other would still be tempted to pull out all the stops to prevent a President from changing the balance. Given that constant pressure, the Court would still tend over time towards a more or less even balance and swing votes would be just as potent.
There are two reasons why the Court has tended toward narrow majorities of late and they are the result of trends over the last half century. One is that the Court began to take it upon itself to intervene in major national controversies and to insert its own political judgments by its decisions. On issues like civil rights, religious liberty, and abortion, the Court decided to decide the issues. It is not that this never happened before (see McCulloch v. Maryland and Dred Scott) but it was relatively rare prior to the Second World War. Maybe it's a very good thing that the Court did this, but there is no escaping the consequential politicization of the Court.
The second reason, closely related and perhaps a result of the first, is that there are big differences among scholars, judges, and politicians about the meaning of the Constitutional provisions. Political positions are heavily implicated in the constitutional positions. Consider, for a case in point, the Supreme Court's recent decisions on the Second Amendment right to bear arms.
Conservatives like to think that there is a remedy for this. They offer such doctrines as original intent and strict construction as ways to distinguish the Constitution as the rules of the game from the actual play on the field. That the Left views conservative judicial decisions as not only wrong but illegitimate tells us that the conservatives have a point. I confess myself to be tempted by this approach. I am a judicial minimalist. I think that the Court should decide as little as possible and should view itself as a team of umpires whose job is to ensure fair play, not to help the Cubs finally win.
Perhaps, someday, our political culture will allow that. I am not holding my breath. It doesn't do so now and will not for a long time. No numerical manipulations of the court will change the basic dynamics.