Small is Beautiful

How many judges should a country’s highest court have? Those of Canada and the United States both have nine, but Jonathan Turley, of George Washington University, argues in an op-ed in the Washington Post that that’s not nearly enough. Although made with the U.S. context in mind, his argument, if persuasive, would be relevant to Canada since our supreme courts happen to be of the same size. But it is not persuasive, and instead, it illustrates the dangers of what might be called casual comparativism – the use of half-baked, half-ignorant comparisons between legal systems, which are more often than not misleading, and can be used to reach and justify unwarranted conclusions.

Prof. Turley is concerned that the Supreme Court of the United States often decides cases of the greatest importance by 5-4 votes. The problem with this is that the “court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.” A nine-member court is bound to endure bitter splits into two camps, with one or two swing voters in the middle.

This is something that countries with larger high courts manage to avoid: Germany (16 members), Japan (15), United Kingdom (12) and Israel (15). France uses 124 judges and deputy judges, while Spain has 74. These systems have structural differences, but they eliminate the concentration-of-power problem that we have in the United States.

The current number of the Supreme Court’s members is, he points out, an historical accident and, he adds, “one of the worst numbers you could pick.” He thinks a 19-member court, similar in size to circuit courts in the United States, would be much better. Such courts

are often divided … [y]et, it is rare that one or two of those judges consistently provide the swing votes on all issues when they sit “en banc,” or as a whole. Appellate courts of this size have proved to be manageable while allowing for more diversity in their members. More important, the power of individual judges is diluted.

Prof. Turley expects other benefits from an expansion of the Supreme Court’s membership, including the possibility to have its judges ride circuit again, as they did until the Civil War in the United States, and serve as temporary additions to intermediate appellate courts, breathing in the real air of legal practice, to supplement the rarefied atmosphere (to borrow an expression from Lord Denning) of the highest court.

As I said above, I do not find this a compelling argument.

There are no guarantees of a larger court not being split of course, perhaps quite evenly, just as there is nothing in the number nine that condemns a nine-member court to a permanent 5-4 split. Indeed, even the U.S. Supreme Court decides many cases unanimously, and others by large majorities. And as the Supreme Court of Canada’s statistical report on its work from 2001 to 2011 shows, its decisions are, more often than not (in around 75% of the cases), unanimous despite its having nine members. Indeed I wonder if a larger court would not be susceptible to more complex, three- or four-way splits, which are a bigger problem for the certainty and clarity of the law than a clear-cut 5-4 (though in 1990s, the Supreme Court of Canada was much more fractured than now – despite having only nine members).

As  for the reference to “countries with larger high courts,” it is quite misleading. It ignores obvious comparison points – Canada and Australia – whose judicial systems are most like that of the United States, and whose supreme courts have nine and seven members respectively. It refers to the very large French Cour de cassation, but ignores the Conseil constitutionnel, which has nine appointed members (in addition to former presidents, who are entitled to sit there as well). It refers to the total membership of the Supreme Court of the United Kingdom, but ignores the fact that it sits in smaller panels, typically of five judges. The same is true of the Federal Constitutional Court of Germany, which typically sits in panels of three or eight. (Now in fairness, it is not entirely clear whether prof. Turley proposes that his 19-member Supreme Court to sit in full or in smaller panels – but smaller panels would arguably cancel out the reduction in the power of individual judges which he advocates.) So the examples invoked seem to disprove, rather than to support, his claims.

As the comparison with the Supreme Court of Canada suggests, to the extent that the Supreme Court of the United States is “dysfunctional” as prof. Turley believes (which I doubt), the solution to the problem must be in changing the legal and political culture in which it is embedded. This is perhaps even more difficult than changing the number of judges, but will be more effective. As for Canada, our nine-member court seems to serve us just fine.

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