In today's Washington Post, Professor Jonathan Turley, discusses the fate of the ACA in terms of the small number of justices on the Supreme Court, with the headlines "The fate of health care shouldn’t come down to 9 justices. Try 19..
This article makes a very strong argument that with 9 on the Supreme Court, we are held hostage to the opinions of a select few. It is well worth a read, though I suggest that you read it on Jonathan Turley's blog since the WaPo cut back the original article for space considerations: Is The Supreme Court Too Small? A Proposal For The Expansion Of The United States Supreme Court
The Supreme Court is our main political, economic and democratic problem, in my opinion. Regardless of the outcome of ACA (about which I am not hopeful,) I believe that if we are to maintain democracy, we must find a way to dilute the Roberts power bloc on the court which is 'legislating from the bench' in a breath-taking way, as is so clear with the Citizen's United Decision.
Any work, activist or legal or congressional, that we are able to do is vulnerable to being struck down by these partisan politicians who no longer care about presenting even the appearance of impartiality. So, as far as I am concerned, our next step is to educate people on the political maneuvering of the Supremes and work to bring ethics and accountability to them as I describe here.
Professor Turley presents a good discussion of the problem of the Supreme Court and a good solution, in my opinion.
It has become a common refrain: It could come down to one justice. That is the general view of the possible outcome of the health care debate this week. After a bitter 14-month fight in Congress and an unprecedented challenge by a majority of states opposed to the law, no more than five individuals are likely to decide the question for the country. The same could be true of immigration — an issue deeply dividing the nation that will have a pronounced impact on the upcoming presidential election. The same is true of free speech where the Obama Administration is seeking sweeping new authority to criminalize false statements. As citizens have gathered anxiously every Monday morning for weeks for the Court to hand down its latest pronouncement, some have questioned the hold of such a small number of unelected jurists on the nation – or, in some cases, one “swing Justice,” Anthony Kennedy. ...... Perhaps we should stop asking about what this Court decides and rather whether “those who know” are too few and “those who don’t” should be demanding fundamental changes of the Court itself, including its expansion.(bolds inserted)
Professor Turley hits the nail on the head saying that "no more than five individuals are likely to decide a question for the country", which is far from a democratic representation of the interests and needs of that country. The fact that those justices are all also rabid members of the extreme branch of the Randian Republican Party working unabashedly for the 'liberty and justice for ALL THE 1%' and are additionally all direct or associate members of the 'shariah-like'
Opus Dei branch of Catholicism, should give us all pause about how an extremist majority is trying to dictate to the rest of us. Is this democracy? I do not think so.
Power is not supposed to be concentrated in the hands of an elect few in a democracy, but that is just where we find ourselves.
And if we do not try to change this, it will be our downfall.
Professor Turley continues to explain the impact of the concentration of power in the hands of a few:
Any Supreme Court of any size will always render decisions that are unpopular. It is supposed to. Federal judges are given life tenure to insulate them from public opinion to allow them to protect minority interests and basic liberties. However, there remains the question of how many people should it take to be the final word on such questions. Our highest court is so small that the views of individual justices have a distortive and idiosyncratic effect upon our laws – a problem that most other countries have avoided with larger courts that allow a broader range of views and experiences.(bold inserted)
The deep respect for the court as an institution often blinds us to its flaws. The greatest of those flaws is that the court is demonstrably too small. Nine is actually one of the worst numbers that you could pick – and it’s certainly not what the founders chose. The Constitution itself does not specify the number of justices and that number has actually fluctuated through the years. The nine-member Court is a product not of some profound debate or study, but pure happenstance.
He continues to explain that it is interesting to see that other countries don't have the same concentration of power in the hands of a few as in the United States, e.g. 'Germany (16), Japan (15), United Kingdom (12), India (31), Israel (15)."
In addition to expanding the number on the Supreme Court, Professor Turley proposes to additional reforms:
1) Getting Congress to apply the Code of Judicial Ethics to the Supremes
2) Getting Congress to require that hearings be televised to bring a much needed transparancy to the court proceedings allowing citizens to make their own judgements and revealing the actual capabilities and caliber of the justices.
These two changes would bring accountability to the Supreme Court and would mitigate against what Professor Turley calls a " sense of entitlement that comes from the cloistered and insulated culture of the Court."
I cannot recommend highly enough a thorough read of Professor Turley's article. I believe we must take on some proposals of reform of the Supreme Court in order to literally preserve our democracy. And I think that Professor Turley's recommendations have a lot of merit and deserve a thorough discussion and analysis.
WE MUST WORK TO MAKE THE SUPREME COURT ACCOUNTABLE TO THE WHOLE NATION THAT THEY REPRESENT. Not just the special interests with whom they are aligned.
As we face whatever comes down with the ACA this week, I believe that it is time to reform the Supreme Court. We cannot let those who say 'how can you do it with the Republican's in control?' deter us in this effort. We need to pick a long term goal, set incremental goals along the way and work hard and relentlessly towards those goals. Just because Congress wouldn't vote these changes today, doesn't mean that we don't educate the public to the need for the changes and educate our politicians as well. And make it a platform of the coming election, if need be. It is not a small matter that two Supremes will most likely resign during the next presidential term. WE DO NOT WANT RANDIAN REPLACEMENTS.
I think that the Supreme Court needs to be a major campaign issue. The reform and replacement of the Supreme Court needs to be a major slogan in the coming election.
We must not be afraid to look at the big picture of true democracy and work towards it.