Billy House
Republic Washington Bureau
Jul. 2, 2004 12:00 AM
WASHINGTON - Justice Sandra Day O'Connor's recurring role as a key swing vote
is essentially turning the U.S. Supreme Court into "a court of one,"
says a prominent constitutional scholar who argues that the nation's highest
court should be expanded from nine justices to 19.
In an article titled "Unpacking the Court," George Washington University law Professor Jonathan Turley calls it "remarkable" how uncontroversial this "concentration of power" in a single justice has been, saying that never was the intent of the nation's Founding Fathers.
Turley, who is a frequent witness before the House and Senate on legal issues and has worked as an on-air analyst for network television news shows, hopes his just-published article in the summer edition of Perspectives on Political Science will serve as a catalyst for debate on the issue.
He said he already has gotten telephone calls from some congressional offices intrigued by the article's call to make the Supreme Court bigger.
O'Connor, from Arizona, is a 23-year veteran of the court. She was not available
for comment Thursday.
By virtue of her often being the deciding vote on an otherwise evenly divided
court, O'Connor has had a major role in helping to reshape the country in areas
such as criminal sentencing, campaign financing and affirmative action.
Along the way, she sometimes has confounded her long-time conservative allies with what at times seems to be evolving, if not legally inconsistent, views on everything from abortion rights to federalism.
Turley's article lays out how consistently key her votes have been.
Justice's key role
Nearly 20 percent of the 71 published Supreme Court decisions in the 2002-2003 were the results of 5-4 votes.
In 12 of those 14 cases, O'Connor was the swing vote. In 2001-2002, 28 out of 85 decisions were 5-4 votes, with either O'Connor or Justice Anthony Kennedy emerging in every one of them as the swing vote.
"It is . . . ridiculous that Sandra Day O'Connor should be a court of
one," Turley said in an interview on Thursday.
"She has contradicted herself from one term to another, and that has left
the law constantly being whiplashed by the evolving views of a single justice."
"The size of the court is the problem," Turley argues in his article.
But Turley says there's no constitutional reason why that can't be changed.
In fact, he notes the court has had as few as five justices and as many as 10 in its history. The current nine-member format was instituted in 1869.
In 1937, then-President Franklin Roosevelt wanted to increase the number of justices to 15 after a conservative-leaning court blocked his New Deal reforms. Roosevelt dropped the idea to pack the court with his appointees when the court suddenly shifted in favor of his legislation, a move known in history as the "switch in time that saved nine."
"In hindsight, however, Roosevelt may have had the right idea for the wrong reason," Turley writes.
"The interest in expanding the court is not to pack it but to unpack it."
"A 19-member court would not eliminate the possibility of a single justice being a continual swing vote, but it would make such a role less likely," Turley writes.
A larger court also would reduce the time it takes for the justices to write their opinions on cases and possibly increase the number of cases they would hear to 90 from the current level of about 75, he writes.
Turley also argues that an expanded court would lessen the partisan "bloodletting" over court appointments.
While a president's Supreme Court picks would continue to attract political advocacy and controversy, he says the relative importance of any given justice would be greatly reduced except in rare periods of sharp splits on the court.
Under Turley's plan, the 10 new justices would be phased in so no president could appoint more than two per four-year White House term (not counting retirements).
Ways to expand
To expand the court, he writes, Congress could pass a statute or pursue a constitutional amendment, which would set a final number of justices in stone.
"My initial reaction is skepticism," said Elliot Mincberg, vice president of the People for the American Way Foundation, a Washington, D.C.-based civil rights group that monitors Supreme Court activities.
"It would clearly be a major change. But in some ways, it could raise the same concerns of the so-called court-packing scheme under FDR" if the additional judges were not added in a balanced way, he said.
Rep. Jeff Flake, R-Ariz., a member of the House Judiciary Committee, hesitated to comment on Turley's Supreme Court proposal until he reads the article, said his spokesman, Matthew Specht.
Spokesmen for the chairmen of the House and Senate Judiciary committees had similar comments.
Reach the reporter at billy.house@arizonarepublic.com 1-(202)-906-8136.