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After that time, the size of the court expanded and shrank, largely with the number of federal circuits. Since justices once "rode circuit" and sat as judges in lower courts, Congress would add a justice when it added a circuit or reduce the number with the elimination of a circuit.
Thus, when a 10th circuit was added in 1863, a 10th justice was added. In 1869, the court happened to have nine members for nine circuits. And that is where its size settled.
Justices detested riding circuit and persuaded Congress to end the practice in 1869. The court remained at nine members despite the fact that some federal courts of appeal now have as many as 29 judges. Ever since, we have repeatedly had 5-4 split decisions, with one or two swing justices dictating the outcome of cases.
With the increasing longevity of justices, such divisions have become stagnant and bitter. Before Justice Anthony Kennedy was the primary swing vote, Justice Sandra Day O'Connor was often the deciding vote and for years shaped the law according to her shifting views on subjects from the death penalty to privacy.
Some proposed Supreme Court reforms seek to break justices' hold by rotating these positions among federal judges, while others call for mandatory retirement dates. But I believe that many of the court's problems come back to its dysfunctionally small size.
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.
While the best number is debatable, I believe that a 19-member court - roughly the average size of a circuit court - would be ideal. Appellate circuits are often divided between liberal and conservative judges.
Yet, 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.
The exaggerated power of each justice has also undermined the confirmation process. That, too, would improve with a larger bench. Because there are now so few positions, confirmation fights have become increasingly bitter, and presidents have become increasingly risk-averse in their nominations.
Jurists are often selected because they have never said or written anything remotely provocative or even interesting. Many are chosen precisely because they are relative unknowns - such as O'Connor, David Souter, Clarence Thomas and most recently Elena Kagan.
Bypassing clear intellectual leaders in courts, the bar and academia, modern nominees are picked as a type of judicial blind date. The chances that we could have a legal virtuoso such as Louis Brandeis or Joseph Story on the court in the current system are at best accidental.
How would we get to a court of 19? Gradually. If Congress ordered such an expansion, no president would be allowed to appoint more than two additional justices in a term. Once fully staffed, the court would have a more regular natural turnover. This would allow greater variety and a more consistent opportunity for each president to name members to the bench. It would also decrease the importance of individual justices hewing so closely to party lines - potentially allowing nominees with broader experience and ideas.
An expansion might also allow Congress to force justices to return to the worthwhile practice of sitting on lower courts for periods of time. One of the greatest complaints from lawyers and judges is that the justices are out of touch with the reality of legal practice. Having a 19-member court would allow two justices to sit on an appellate court each year by designation - and be forced to apply the rulings that the Supreme Court sends down.
We treat institutions such as the Supreme Court as inviolate. However, the framers not only gave us a brilliant system of government but the ability to improve it to better meet contemporary demands.
The respect that most of us hold for the court should motivate us, not deter us, from reforming it. Just as the philosopher and jurist Jeremy Bentham called for "the greatest good for the greatest number," sometimes the greatest good can be found in the greater number. When it comes to the Supreme Court, that number may be 19.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University, where he teaches a course on the Supreme Court.