We should have 19 Supreme Court justices

The Constitution says nothing about the number of Supreme Court justices we should have, and in American history the number has varied from five to nine. But in other countries there are as many as 140+, and the average number is 19.

Yes, yes, I know FDR tried to pack the court to change its political complexion. I'm not talking about that or anything like that.

What I am talking about is the third branch of government being surmounted by too few people, and given the slow oscillation of legislative control between the two major parties, many important issues are decided by one tie-breaker like Justice Sandra Day O'Connor or Justice Kennedy--and now Chief Justice Roberts--while most of the rest reliably vote one way or another on politically divisive issues.

There are 13 circuit courts. At the very least we should have one Supreme Court justice for each of these. 

Apart from that any number is pretty arbitrary. I think 19--has to be an odd number of course--would be big enough to ensure greater diversity of opinion and source of nomination. Add a term limit--say, 25 years, to lean on the generous side--and you wouldn't wind up with one person deciding major policy issues' constitutionality in case after case.

As for court packing, you could have five of the additional 10 nominated by the President, the other five nominated by the leadership of the other party. So the current political complexion of the Court would not be changed. If not that, surely both sides could agree on a way to get up to the 19 number that didn't tilt the playing field in a way that was substantially different than it is now.

I want that because it's critical that the American people believe in the legitimacy of the Court. And I believe having 19 justices instead of 9 would make the Court seem less idiosyncratic and less dependent on a handful of swing justices, and thus seem more legitimate.

Why'd he pick Elena Kagan for the next Justice?

The Republicans' quasi-intellectual smiley face, David Brooks, wrote a column about this. He lamented how this era's hyperpartisanship means you can't get a high profile public gig unless you're a cipher like Kagan (David Souter being another example of this).

My take:

Ideologues assume that anyone who isn't an ideologue has no principles--apart from "taking care of #1" of course. I recall one conservative commentator said that about Sandra Day O'Connor.

But what if Ms. Kagan's principle is being a good judge, rather than using the black robe to promote an ideological agenda? What if she thinks that thoughtful, fair-minded judging does far more to aid society than judicial activism--right or left?

Now President Obama does have positions, and while he's pragmatic, he's also most assuredly a Democrat--probably in about the middle of the Democrat spectrum. So why would he nominate someone like Kagan, who has put herself out there far less than he has? She's not like him in that sense.

Easy. Ms. Kagan, as a Democrat, will be in the minority on the Supreme Court for decades, in all likelihood. The Court's four relative liberals are far older and frailer than the Court's four hard-line conservatives. So even if our president is able to put several more justices on the bench, he'll still be replacing Democrats.

If President Obama put an assertive, opinionated person on the Court who exactly mirrored his own opinions, how would Roberts, Alito, Scalia and Thomas react? They'd close ranks. Harden. And such a justice would probably push Kennedy into that camp even more than he is now.

The best the President can hope for is someone who's a really, really skilled dealmaker--someone who can turn what might be a 5-4 vote into a 4-5 vote, and sometimes even persuade the arch conservatives that her point of view is really the right position.

That's Kagan, folks. She's vastly more likely to aid Democratic causes than a Movement orator on the court.

Unless you think "success" would mean decades of dissenting opinions, beautifully written, persuasive to any Democrat--and utterly futile.

I'll take a pragmatic wheeler-dealer with immense powers of persuasion across the aisle vs. someone who says what I think but can't make law happen, any day of the week.

So should you.

Ms. Kagan will also challenge Republicans to come up with a valid reason to vote against her.

No experience on the bench?

Well, first of all that's their fault. Clinton nominated her to a U.S. Court of Appeals slot in June of 1999. The Republican Congress refused to even hold hearings on her nomination, much less schedule one of those up or down votes they claim to adore. It didn't concern them in the slightest that the Court of Appeals was shy one justice.

Then, six months later, Bush II nominated John G. Roberts to that position, and Congress promptly confirmed him. So Kagan's nomination now is poetic justice at the least.

Besides, other well-known Supreme Court justices with no prior experience on the bench include: John Marshall, Earl Warren, William Rehnquist, Felix Frankfurter, Louis Brandeis--and 36 other SCOTUS justices.

The Constitution says exactly nothing about what qualifies someone for SCOTUS except that a president has to nominate them and then they have to get 51 Senate votes. Could be the Dalai Lama or Katherine Heigl (I wonder if President Obama considered either of them?)

Then there's the matter of Ms. Kagan being anti-military. This is equally bogus. It is true that she opposes discrimination against homosexuals in the military--or anywhere else. But she has supported the military on other regards, such as--and this is a biggie--supporting the application of battlefield law to places other than traditional battlefields. At her Solicitor General confirmation hearing she said "someone suspected of helping finance Al Qaeda should be subject to battlefield law—indefinite detention without a trial—even if he were captured in a place like the Philippines rather than a physical battle zone."

There have been whispers that she must be homosexual, since she's 50 and unmarried--and that practically the only political-type opinion she's expressed publicly concerns homosexual rights.

I say, could be, but so what? I'm much more concerned about having four doctrinaire Catholics on SCOTUS than one homosexual. Like few people my age, but most people under 30 (regardless of their political affiliation) it's just not important to me. My main opinion about homosexuals is that they're less likely to contribute to overpopulation. I won't go to movies that feature a lot of guy-on-guy liplocking, nor attend Gay Pride parades that feature same, but apart from that I'll stay out of their bedrooms if they'll stay out of mine.

Now if Ms. Kagan is confirmed, joins the Court, and thereafter starts showing up with the "Dykes on Bikes" contingent at Pride Parades in full biker regalia...well, that would be interesting. But it's not going to happen even if she is, because even getting a lifetime appointment to the Court isn't going to change her need to be circumspect if she wants to achieve anything, given her side's probably enduring minority status on the Court.

Here's my comment that I posted in response to Mr. Brooks' editorial:

"Give thy thoughts no tongue,

Nor any unproportion’d thought his act.

...Beware of entrance to a quarrel; but, being in,

Bear’t that the opposed may beware of thee.

Give every man thine ear, but few thy voice:

Take each man’s censure, but reserve thy judgment."

Sounds like Mr. Brooks takes issue with Shakespeare's advice on personal conduct [and don't tell me Shakespeare puts this advice in the mouth of a fool; that's a simplistic misreading of Polonius, so there.].

And in all this dismal tut-tutting by Mr. Brooks, not one word about how well President Obama knows her, nor any speculation on why he chose her, except for reasons that might be critical of the President's character.

But of a few things we can be sure: Senator Obama voted against confirming now-Justices Roberts and Alito--and from a Democrat's point of view, the Senator was prescient, seeing through both candidates' demurrals and obfuscations.

I think we can be pretty darn sure that aside from wanting to nominate a woman and a Democrat, and someone likely to be confirmed without going to the mat--he really, really wants to bring in justices who can skillfully manouver some of these 5-4 decisions the other way.

That isn't going to come from putting, say, Al Sharpton in the chair. It will come from someone who knows the game inside and out and can persuade people not of her own persuasion.

I I'm guessing that Mr. Brooks' dourness stems primarily from seeing a nominee he fears can effectively advance Democratic viewpoints on the Court--a rainmaker, so to speak.

Sometimes a whisper is louder than a shout, and a rapier more effective than a sledgehammer.

Let's revisit this column in a year or so and see who's right.

Judicial activism--one side is lying

Here's the big secret about the Constitution of the United States: it's short. Really short. It only takes up 8 1/3 pages in my almanac. So, necessarily, a whole lot of it isn't defined clearly--in fact, much isn't defined at all.

Those who wrote it could have spelled out everything. Many other constitutions do, in excruciating detail. But our founding fathers chose not to. Why?

Because they wanted successive generations to reinterpret it according to the needs of the times, using the guiding principles set forth in the Constitution. Several said so explicitly in their correspondence, including Jefferson and Madison. And I think that because it represents a compromise intended to bring the backward Southern slave states under the national umbrella, the founders used intentionally vague language they perhaps hoped could be made more explicit once the slave states were firmly incorporated into the Union.

However we might guess their intentions, one thing that's clear is that they weren't inviting a free for all. If they wanted that, they could have skipped writing a constitution in the first place. Some countries--like the UK--have no constitution at all, and instead use the accumulated laws and precedents called the Common Law.

Our founders wanted our nation's judiciary and legislatures to take the middle path between a free for all and crippling fundamentalist exactitude.

So they weren't inviting judicial activism, which means judges making up laws, nor were they inviting the rigid originalism/textualism of explicitly spelled-out governing documents like the Qu'ran or the Old Testament.

Of course judges who are ideologues are often activist judges. But whether they're left wing or right wing, one thing they have in common is they never admit that they're activists.

In fact, I'd hazard to say that the more they invoke the sanctity of the Constitution, the more likely it is that they're about to trample it.

You can't listen to right wing talk shows for five minutes without hearing the name "Constitution" taken in vain, over and over.

And our Supreme Court's right wing majority has left the "impartial umpire" touted by Chief Justice Roberts at his nomination hearings...in the dust.

Same thing happened in the 1930s, when an equally ideological court dusted off the most arcane interpretations of the Constitution that you could imagine in its efforts to derail FDR's New Deal. And then as now, partisans of both sides believed they were dealing with an existential threat to the Republic, coming from the other side. Some might say the efforts of the SCOTUS of the 1930s succeeded in prolonging the Great Depression.

But whether that SCOTUS did or not, it was activist, and so is the current SCOTUS majority. Its long string of 5-4 decisions on big, important cases is a sign of that. Roberts said in his Senate hearings that he preferred unanimous decisions on narrowly defined issues to 5-4 decisions on sweeping ones. Instead he has shepherded one big 5-4 decision after another through the court.

I'm no law professor, but one who is lays this out in detail in a New York Times op-ed piece. Read it here.

He says--and I concur--that America's right wing ideologues have sold America a bill of goods in claiming that they're judicially modest while the Left and only the Left is activist. And backing up this claim by saying that they only go by what's in the Constitution is a baldfaced lie. The intentional fuzziness of the Constitution expects and demands continual reinterpretation. The Founders knew they couldn't know the future. That kind of humility is absent from Roberts, Alito, Thomas, and Scalia.

Take the 2nd Amendment. An originalist interpretation would take this as supporting the right of states to have militias, of which our National Guard is a distant cousin--and the "arms" those militias have a right to bear would be flintlocks.

Yet no self-styled originalist says any such thing. And SCOTUS recently declared that the 2nd grants citizens the right to bear modern firearms such as , say, AK-47s, which one competent soldier could use to destroy an entire company of Revolutionary Era troops. And it simply ignored the first phrase of that amendment's famous sentence that talks about state militias.

The SCOTUS judgment may be a good one--that's not what I'm contesting here--but it's patently a modern interpretation and not anything like originalism/textualism. Yet the justices who wrote this decision portrayed it as just that.

I'm not saying this because I always agree with the minority. I don't. But I don't like hypocrisy, which invariably leads to Bad Things, even if the immediate result is to my liking. As Emma Goldman said, "the means reveal the ends."

And the ends of right wing activist judges is to comfort the comfortable and afflict the afflicted, just as the ends of left wing activist judges is to afflict the comfortable and comfort the afflicted. That sounds inherently fairer, but it can lead to terrible errors.

However, those errors don't matter as regards SCOTUS, because it will have a right wing activist majority for decades, almost certainly, regardless of who's president or controls Congress, due to the comparative youth/health of that right wing majority and the relative age/health of the more liberal minority.

Plus, since the court almost invariably sides with the rich and powerful, the rich and powerful spare no expense to promote the current SCOTUS majority, using their sock puppet "think" tanks, talk show pundits, and other marketing venues.

Of course the left have their equivalents, including most unions, but they have far less money and power. It's an unequal contest, as such conflicts always have been.