Jonathan Turley on Expanding the Supreme Court

On November 4th, 2017, Professor Turley spoke at the Buckley Program’s conference on The Constitution and the Courts.

Professor Turley joined the GW Law faculty in 1990, and in 1998, became the youngest chaired professor in the school’s history.  He has written more than three dozen academic articles that have appeared in a variety of leading law journals including those of Cornell, Duke, Georgetown, Harvard, and Northwestern Universities. He is a member of the USA Today board of contributors and the recipient of the “2005 Single Issue Advocate of the Year”. More than 400 of his articles on legal and policy issues regularly appear in national newspapers. 

The Buckley Program had the chance to interview Professor Turley at the Omni Hotel in New Haven, CT. The transcript has been condensed and lightly edited from a longer interview.

By: Jake Fischer

Jake:  Could you elaborate on the basics of your plan for the expansion of the Supreme Court?

Professor Turley:  My proposal would expand the current court from 9 to 19 members, but it would do a couple of things that would address problems that we’ve identified in the past.  One is that it would phase in expansion of the court to a full complement of 19 members over the course of about 20 years.  No president would have more than two new seats to fill in any given term.  They would obviously be able to fill any vacant seats.  The first distinction from the FDR plan is that this would be phased in to avoid any president from being able to stack the court.  Indeed, even if you were elected to two terms, you would only be able to secure four new seats.  The second element is that two of the 19 justices would sit by designation on lower courts for one year.  That would mean that the court would be an operating court of 17 not 19.  The reason for that is that the court would return to a tradition similar to riding circuit.  The reason our court is fluctuated over the years is because justices were added when a circuit was added and the court would shrink when the circuit was eliminated.  The justices hated riding circuit.  This was no small risk for them.  These were not young men, and they were traveling over unpaved roads.  They would talk about places like Maine as if it was the farthest place on Earth.  Many of these justices viewed that trip as likely a fatal one.  They would get their affairs in order before they set off.  So the justices worked hard to get Congress to stop the tradition of riding circuit.  What was interesting was when that proposal went to Congress, a couple of members stood up and objected.  The comments made were quite profound and one of the members cautioned his colleagues to think seriously before they took such a step.  He said that the danger is that the justices could become insulated and arrogant.  There is a common complaint among federal judges today that the justices are too far removed from the daily function of judging.  The frustration among lower judges is that the justices often return cases more confused and more uncertain than they went to the Supreme Court.  I think that it would be a great benefit for two justices to have to be an actual judge for a year.  It would also be a great benefit to these circuits to have a justice to sit among them as an equal.  So I think that the benefits to the judiciary and the benefits to the individual justices would be great.  Some justices obviously would object, and they would have to make a choice.  They could retire when their year came up or they could sit by designation.

Jake: Limiting the nominations to two per term, would that only limit the new nominations?

Professor Turley:  We would keep the current system.  So this is just a limitation on new seats until we get to the full complement of 19 justices. At that point presidents would simply appoint and fill vacancies.  The difference is that with 19 justices we would have a greater turnover of seats on the court.  Presidents would be virtually guaranteed one or two new justices per term, as they are in terms of the court of appeals.  That I think would have a great benefit.  We’ve had presidents that have not had nominations to the Supreme Court.  I think there’s a great benefit to having a turnover on the court.  It would also reduce the individual power of these justices.  I think it’s alarming to see the level of power exercised by Sandra Day O’Connor or Anthony Kennedy.  They become a court of one.  I think the framers would have been mortified.  Not only by the power now exercised by the court but the ability of a single justice to exercise the entirety of that power.

Jake: Do you think it would run the risk of becoming an 8, 8, and 1 court, with 2 of the 19 riding circuit?

Professor Turley:  That’s one of the interesting dynamics of this.  When you look at the Court of Appeals voting patterns, many of them are larger than 17.  You don’t see a single swing judge.  What you do see are some cases decided by a single vote margin, but it is rarely the same judge.  You would have some judges that might be the swing on criminal justice or other areas, but there’s a great more cycling that comes through because of the larger number.  9 is one of the worst numbers you can come up with. That’s also one of the reasons why our allies internationally run with larger courts.  They are astonished at how small our court is.  These are countries that actively sought to diffuse the type of power exercised by a few judges.  Expanding the court to 19 would not be a huge number, but it would significantly diffuse the power of any single justice.  Quite frankly, the current justices, for the most part, hate this proposal.  Some of them told me in no uncertain terms that they would probably resign if my proposal was ever adopted.  I’m sorry to hear that, but this is really not their court.  If a justice cannot tolerate being 1 of 17 instead of 1 of 9, then we have to thank them for their service.  It’s the same thing with cameras in the courtroom.  I’ve been an advocate for years that Congress should immediately order that all oral arguments be televised.  The Framer’s were men of science, for the most part.  They were fascinated by new technology and new scientific ideas.  I think they would have been enamored with the technology of television.  They believed in trials being public.  I think that James Madison would have looked at the lines in front of the Supreme Court as lunacy.  Law students stand in line for days to hand their spots over to lawyers or wealthy patrons.  It’s complete lunacy when a single technology would allow all citizens to watch arguments being made before the highest court.  This is their court.  It belongs to the public.  They should be able to watch what’s in it.

Jake: Has there been any legislation for this yet?

Professor Turley: There was, and justices said that they would resign.  I feel the same way about the response to cameras as I do the response to expansion.  Justices over time identify with the court and that can blur the distinction between their individual role and the court itself.  This remains our court, not theirs.  The public clearly would be benefitted from watching arguments.  What I thought was most telling recently was one of the justices said that his greatest concern was not that lawyers would grandstand, but that his colleagues would grandstand.  Well. that’s a perfectly appalling reason to prevent cameras, that your colleagues couldn’t discipline themselves and act appropriately.

Jake: Do you think that term limits would help to ensure each president would get a consistent number of appointments?

Professor Turley: I’m against term limits.  I’m against term limits for members of Congress and state legislatures.  I think it’s a bad idea to limit democracy.  I think it’s also a bad idea to limit courts in this way.  I think that age is becoming more of an arbitrary factor with advances in medical science and other areas.  People are living longer.  There’s no reason why someone who is over 70 cannot be an effective justice.  I think Ruth Bader Ginsburg really shows that.  She, physically, has aged, but mentally she’s as sharp as ever.  When John Paul Stevens retired, he was completely undiminished.  He was as sharp as he’d ever been.  Moreover, John Paul Stevens, I think will be primarily known for the last 20 years of his service on the Court than his first 10 years.  His final years were some of his greatest opinions.  Many justices start out, as did Stevens, with very limited juris prudential footprint.  It takes a while for them to get an appreciation for a legal horizon.  Particularly, judges like Stevens that came from lower courts, for a very good reason they would try to limit their opinions to follow precedent.  It takes a while to understand that a justice, has to see, not the immediate precedent, but a legal horizon that may be too far for some of his colleagues to see.

Jake:  Do you think that intensifying of the competition over nominations is undermining the neutrality of the Supreme Court?

Professor Turley:  Well, for the last 30 years, the confirmation process has been distorted by political force.  Nominees are now selected for their ease of confirmation.  That may not be the case with Gorsuch, but we have had a long string of judicial blind dates.  People selected because they have essentially empty portfolios.  That’s a terrible way to select members of the Supreme Court.  The fact is, if you look at justices appointed in the last 20 years, most of them would not have been on a short list of experts who are leading voices in the bar or the bench.  That doesn’t mean they can’t prove to be great justices, but that is a matter of luck.  Right now we simply roll the dice on the possibility that a stealth nominee will become the next Louis Brandeis. What is truly sad is that Louis Brandeis could never be confirmed today.  I think that may change if we have a larger court. One of the reasons we have this rather anemic process of nomination and confirmation is that each of these seats are just simply too important.  The strange logic of Washington is that the more important something is, the fewer questions you want answered about a nominee.  I think with 19 members, the Senate would feel somewhat greater flexibility in nominations.  First and foremost, these nominations would no longer be so outcome determinative.  On a 9 member court, each nomination could easily flip the outcome.  With 19 members, that is less of a likelihood.

Jake Fischer is a student in Berkeley College and a former US Army Medic.