Debate Nirvana

If it’s arbitrary and random, then there is no reason why we shouldn’t increase the number to have a more fair and balanced court. 

There is no Constitutional requirement to have 9 Justices. The Constitution itself does not specify the number of justices and that number has actually fluctuated through the years. In fact, the first Sup Ct had only six justices. The deep respect for the court as an institution often blinds us to its flaws. The greatest of those flaws is that the court is too small. Nine is actually one of the worst numbers that you could pick. The nine-member Court is a product not of some profound debate or study, but pure happenstance. In 1869, the court happened to have nine members for the nine circuits. That is how we ended up with this size of this Court.  Now we have 13 circuit courts, but the number of justices stayed frozen at 9.

Most federal courts of appeal now have as many as 29 judges. According to George Washington University Professor and legal scholar Jonathan Turley, 19 would be ideal, which is the average size of a Circuit Court (the court level beneath the Sup Ct). Ever since the Court stopped at nine members, we have repeatedly had problems of 5-4 splits with one or two swing justices dictating the outcome of cases. With the increasing longevity of justices, such divisions have become stagnant and bitter. Today the swing vote is Justice Kennedy. Before Kennedy, Justice Sandra Day O’Connor was the swing justice and, for years, shaped the law according to her often changing views on subjects ranging for the death penalty to privacy.

Just because we settled on 9 arbitrarily does not mean that any number is as good as any other.  A 19-member court has been shown to work where a large court would be unwieldy. Experience both domestically and internationally would suggest that in close cases, a 19-member court functions well as a whole and show greater diversity of opinion and experience. More importantly, the power of the judges themselves is diluted by the number.

Experience has shown that a 19 member court is small enough to be manageable and would not present a significant burden in terms of confirmation.  9 is simply too small for a court with such final and sweeping authority.

When people don’t believe in our Supreme Court, then one of the pillars of American government will collapse. Citizens must respect and obey the rule of law, or there will be anarchy and an end to our society as we know it. 

As of July 2016, the U.S. Supreme Court's 42% job approval rating is the low point in Gallup's 16-year trend. Why do people disapprove so strongly of the highest court in the land?  Gallup attributed the poor results to the divisive confirmation process over Obama’s nominee Merrick Garland. In addition, as a result of Republican’s refusal to consider an Obama appointed nominee to fill Scalia’s seat on the court, the 8-person Supreme Court deadlocked on several potentially important decisions, which meant the lower court ruling is upheld. One of the more significant court decisions of the term was the ruling in United States v. Texas, where the court considered whether the Obama administration was entitled to shield as many as five million unauthorized immigrants from deportation and to allow them to work. According to a Reuters poll, “ 61% of Americans support the plan to relax immigration policy for some undocumented people.” Thus a majority of Americans widely disapproved of that decision which resulted in the Supreme Court deadlock, and this affects their view of the Court.  If we had more Justices, the court wouldn’t have been deadlocked over this issue and the case could have been heard in the Supreme Court.  In addition, Americans' trust in the judicial branch of the federal government has fallen significantly in the past year, and now a record-low 53% say they have "a great deal" or "a fair amount" of trust in it, with Republicans approving of the judicial branch by only 26%.

The court is usually split – 4 to 4 – liberals versus conservatives – over every issue.  One justice – currently Justice Kennedy – therefore has too much power to decide cases that affect the whole country, and he’s not even an elected official. 

Sup Ct justices are appointed by Presidents, not elected by the American people.  So how is it fair that one “swing vote” justice can decide incredibly important cases on the right to Free Speech, abortion rights, gun laws, health care, and even who should be President of the United States such as in Gore v. Bush? A full 20% of cases from each term are decided by one vote (often Justice Kennedy) and  lawyers often craft arguments aimed at capturing his vote and pander to him at oral argument. Justice Kennedy runs the court, according to conventional wisdom. He often sides with the conservative justices in civil rights and campaign finance cases (e.g.Citizens United v. FEC), but he frequently casts the deciding vote in cases advancing socially liberal causes (e.g. Miller v. Alabama). In 2014-15 term, Kennedy was in the majority in all 10 of the cases decided by one vote, where he was the swing vote.

Other countries have figured out that it’s better to have more justices deciding the most important cases. These countries don’t have our problems of “swing” vote justices or having too much power concentrated in the hands of too few justices. 

A review of other nations reveals far greater diffusion of power than the US. For example: Germany (16), Japan (15), United Kingdom (12), India (31), Israel (15). Some use far greater numbers of justices who are divided among different divisions like the 74 jurists in the Spanish high court or the 124 judges and deputy judges in France. Again, while these systems have important structural differences, they do not have the concentration of power that characterizes the U.S. Supreme Court. Both the recent polls and proposed reforms reflect a common concern that 9 people should not yield such concentrated and stagnated power.

Just like in anything else in life – in school, in the workplace, at home – more individuals means more individual views about a subject. 

The Supreme Court currently is not diverse.  They are all graduates of just three Ivy League law schools. None are Protestants. All but one come from a coastal state. Three of them grew up in New York. In a 2016 New York Times article, Justice Sonya Sotomayor said “The Supreme Court is never going to be a melting pot reflective of the country. In most of our lifetimes, the court is only going to turn over one full circle.”  While this is true, more justices would mean more opportunities for diversity.  And judge - Diversity of opinion is good for the judicial process because with more Justices comes more personal experiences and different backgrounds which lend to different perspectives.  A report by Scientific American in 2014 says decades of research by organizational scientists, psychologists, sociologists, economists and demographers show that socially diverse groups (that is, those with a diversity of race, ethnicity, gender and sexual orientation) are more innovative than homogeneous groups. It seems obvious that a group of people with diverse individual expertise would be better than a homogeneous group at solving complex, nonroutine problems. It is less obvious that social diversity should work in the same way—yet the science shows that it does. This is not only because people with different backgrounds bring new information. Simply interacting with individuals who are different forces group members to prepare better, to anticipate alternative viewpoints and to expect that reaching consensus will take effort.

Because filling each seat is such a big deal, presidents nominate non-controversial justices who can pass the bitter partisan confirmation hearings. These are often the least qualified and least published legal scholars. 

“Ugly confirmation fights damage the Supreme Court’s legitimacy and authority,” said the Chief Justice of the Supreme Court John Roberts in 2014. The confirmation process has gotten so bitter because with only 9 justices, and each justice living longer, vacancies on the Court are becoming rare. Republicans wouldn’t even speak to Merrick Garland, Pres. Obama’s nominee to fill the vacant seat left after Justice Scalia died last year.  Republicans blocked Garland so they could wait until after the Pres. Election and hopefullly nominate a conservative justice. When Republican Donald Trump was elected President, Republicans got to nominate conservative judge, Neil Gorsuch for the vacant Scalia seat.  Now Democrats are threatening to filibuster Gorsuch’s nomination hearing which would mean Republicans would need 60 votes instead of 52 to approve Gorsuch as our next Sup Ct justice. This is causing a lot of political drama in the Senate. With more members, the stakes wouldn’t be so high when a new justice is nominated, and hence the confirmation process likely wouldn’t be as intense as it is now.

Also, because people are living longer and the average age of life expectancy has increased every decade to the current 78.7 years according to U.S. Centers for Disease Control and Prevention, a Supreme Court vacancy is becoming rarer.