The Buzz

Should We Expand the Supreme Court?

The Buzz normally takes a dim view of proposals from intellectuals to alter our fundamental constitutional system. These often seem to emanate largely from the policy frustrations of academics who want to change the rules of the game simply because they can’t win with the old rules. So we naturally began rubbing our hands together with a certain combative glee when we saw in Sunday’s Washington Post an article by George Washington University professor Jonathan Turley.

He argued that the Supreme Court should be comprised of a larger number of justices than the current nine—specifically, he suggested, nineteen. And, upon reading his argument, The Buzz concludes that there’s actually some merit in the idea.

The problem, says Turley, is a concentration of power that allows a single swing vote to determine outcomes on a consistent basis. This also creates a dynamic on the Court that militates against the kind of robust give-and-take that would ensue with a larger number of justices. Turley notes that Justice Sandra Day O’Connor “was often the deciding vote and for years shaped the law according to her shifting view on subjects from the death penalty to privacy.”

By contrast, he notes, appellate courts, which average about nineteen justices in size, seldom find themselves in a situation in which a single justice can exercise that kind of power with that kind of consistency.

He adds that 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. “Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations,” writes Turley. He’s correct on that.

He adds that the current number of justices is essentially arbitrary. The Court began with six justices, and the number has expanded and contracted over our early history—but not since 1869, when it became nine because there were nine circuits. This Turley proposal may or may not be a good idea, but it’s worth discussion. Hence, Turley’s proposal is notable.