Frank Bernheisel: The View From Here
Frank Bernheisel
Frank Bernheisel
Posted 03.13.16
Just Outside Washington


How many U.S. Supremes should America have?

Richard A. Posner, who is a judge on the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School, has done an excellent analysis of the Supreme Court in the March 9th Washington Post. One of his points is that "the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges."

He goes on to point out: "most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen." He provides examples, as we all can, including, electronic surveillance and corporate donations to political candidates and Superpacs.

We really wanted to believe John Roberts in his opening statement during his 2005 confirmation hearing before the Senate Judiciary Committee, to be the Supreme Court Chief Justice, when he said:

"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. I will remember that it's my job to call balls and strikes and not to pitch or bat."

Additionally, Judge Posner points out, -- contrary to what Justice Roberts said -- that the justices bring their attitudes and suppositions, which they have derived from their upbringing, training, personal and career experience, religion and national origin.

So we are confronted with decisions like the Hobby Lobby decision in which the five justices that decided the case were all Catholic and male. The major tangible matter in the case was contraception, practiced by the vast majority of women in the U.S., including Catholics.

In their ruling, the five Catholic justices said that the government has to defer to an employer's religious objections, thereby creating additional "rights" for corporations. Further, the reasoning of the Court causes concern. Justice Alito's majority opinion relies on the Catholic teaching about complicity to explain the supposed burden on religious freedom.

He repeats the Catholic Church's position that the ACA contraceptive mandate violates the moral obligations of a Catholic to do anything that would 'facilitate' the provision of contraception to any individual (and that includes non-Catholics).

This seems to me to be an admission that personal supposition (read bias) guided the decision. And four other justices concurred in this logic.

A solution to this clear problem would be to enlarge the Supreme Court. A larger court would be more likely to have a more diverse makeup, and suppositions; and therefore less likely to produce biased results.

To overcome the bias of the Supreme Court, Franklin Roosevelt proposed legislation to expand the Court by up to 15 members based upon the number over 70 years old. Larry Sabado of the University of Virginia suggests 19 justices as an optimal number.

Given the plethora of 5 to 4 decisions, nine justices is clearly too few. Also, fewer justices provide a greater opportunity for political partisans to pack the court. Roosevelt's solution strikes me as too complex.

I do not see a scientific way to pick the size of the Supreme Court ,and Sabaso's number of 19 strikes me as about right.