WASHINGTON — The Supreme Court is the most secretive branch of the government and arguably the most powerful in that its members, once appointed and confirmed, have lifetime tenure, and are accountable to no one. Against the backdrop of a series of decisions that will impact the presidential race, this charmed life the robed justices lead is getting some welcome scrutiny.
A New York Times/CBS poll taken last month found the approval rating of the Supreme Court at 44 percent, hardly a ringing endorsement though considerably higher than the 17 percent Congress currently gets. In that same poll, 60 percent of respondents said lifetime appointments give the justices “too much power.”
The current court is evenly divided between four hardcore conservatives and four pretty doctrinaire liberals, with a single justice, Anthony Kennedy, casting the majority vote depending which side he favors. Chief Justice Roberts joined Kennedy to side with the liberals on the Arizona immigration case last week, a ruling that had Court watchers cheering since it broke the mold of 5-4 decisions narrowly decided along political and ideological lines. Roberts then joined the four liberals to uphold the Affordable Care Act, President Obama’s landmark law overhauling the nation’s health care system.
Whether this Roberts/Kennedy alliance can endure will depend in part on how each man sees his role on the Court. Kennedy is the go-to justice for both sides; win him over and you’ve got your majority. His batting average puts him more on the right than the left, and he hasn’t achieved the iconic stature of former Justice Sandra Day O’Connor when she played that role, but he clearly sees himself as a bridge builder.
Roberts famously said during his confirmation hearings that he saw himself as an umpire, someone who counted balls and strikes, but didn’t make the plays. He has strayed from that commitment, leading narrow majorities that overturned precedents, as he did in Monday’s Montana decision on campaign contributions, and in the Citizens United decision of 2010 that opened the door to unlimited and undisclosed corporate money for political campaigns.
The focus on one or two justices and their extraordinary power prompted Jonathan Turley, professor of public interest law at George Washington University, to make the case for a 19-member court. It sounds outlandish at first, but other democratic countries with a judicial system much like the U.S. have larger supreme courts, and Turley names them: Germany (16); Japan (15); United Kingdom (12); and Israel (15). France uses 124 judges and deputy judges that are rotated, while Spain has 74 alternating justices, another way to avoid the concentration of power that we are witnessing in today’s U.S. Supreme Court.
With 19 justices, the odds of a 9/10 split are unlikely, especially since the appointments would be spread out over a number of administrations. In Turley’s formula, no president gets more than two appointments. There’s nothing magic about 9 justices; the founding fathers did not enshrine any number in the Constitution. Turley picks 19 because it’s the size of a Circuit Court.
Given the paralyzed nature of our government, it’s hard to imagine any kind of radical reform of the Supreme Court could take place in the current environment. But it’s a healthy conversation to have even if it only reminds us that those sitting on the court today are not infallible, and a change of one or two, or an addition of one or two, or even 10, could produce a court that is truly representative and more able to reach decisions that voters would not regard as political.
U.S. News Syndicate, Inc.