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Berkheimer: Need to be wiser with Supreme Court; silly to add number, only right to set ethics code

Darrell Berkheimer
For The Aspen Times

The move to expand the U.S. Supreme Court from nine to 13 members is both a brainless and foolish plan. 

I agree the current high court — with six Republican-appointed justices to three appointed by Democrats — is too biased in favor of special interests and Republican politicians. 

And I agree that Supreme Court reform is sorely needed — with term limits and a binding code of ethics for the justices, complete with penalties for non-compliance. 



But expanding the Supreme Court to 13 members would only be a temporary fix at best, merely providing for the possibility of a 7-6 court in favor of more liberal Democratic special interests. 

We also must give some thought to what could happen in the future. A 13-member court could evolve into a much worse one-sided 10 to 3 disparity if one political party controlled the Senate and presidency for three or four consecutive presidential terms. 




What happens then? Must we then consider adding eight more justices in an effort to make the balance more even at perhaps 11 to 10? 

That’s an absurd idea, isn’t it? 

But it’s no more absurd than adding four now to create a 7 to 6 balance. 

And doing so would merely add considerably more expense for the operations of the four additional Supreme Court Justices — more expenses to be paid by taxpayers. 

Changing the number of high court members, however, is not a new or different idea. Originally set at six in legislation signed by Pres. George Washington, the number has been changed six times since then — going from as low as five up to 10.  But nine has been the longest-lasting number, and nine justices generally have served our nation quite well. 

The best reform proposal, though, is contained in a bill introduced in the U.S. House last July by Rep. Hank Johnson of Georgia’s 4th District, a Democrat. It was submitted in the Senate by Democrat Sen. Sheldon Whitehouse of Rhode Island. And several other members of Congress have added their names as co-sponsors. 

That bill would establish 18-year terms for the nine Justices, with two appointed during the first and third years of each presidential term. 

It’s a reform originally proposed three years ago in the “Our Common Purpose” report issued by a citizens commission — after two years of regional community hearings. The commission was formed by the American Academy of Arts and Sciences. 

Regarding a much-needed code of ethics for the Supreme Court, Congress should legislate the same code of conduct for the high court that was enacted for all federal judges in lower courts. Originally adopted in 1973 as proposed by Chief Justice Warren Burger, it has been revised eight times since then. 

The four ethics canons of the code state that a judge should:

  • Uphold the integrity and independence of the judiciary.
  • Avoid impropriety and appearance of impropriety at all activities.
  • Perform the duties of the office fairly, impartially and diligently.
  • Refrain from political activity.

Failure to adhere to the code should result in penalties established by Congress. 

I dispute the argument by some politicians and members of the Supreme Court that Congress does not have the authority to enact an ethics code for the high court under the separation of powers doctrine. 

No such doctrine is written into our U.S. Constitution, which merely lists the separate powers for each of our federal government’s three branches. 

And the Constitution, in listing the specific judicial powers of the Supreme Court, adds this sentence: “In all other cases before mentioned, the Supreme Court shall have appellate jurisdictions, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

Also, the first sentence of Article III of the Constitution states: “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

Those statements reveal how our nation’s founding fathers foresaw some overlap in the three branches’ performance of government functions. And they assumed Congress would establish the details for the daily mundane — non-judicial — operations of the high court. 

And that’s why the Supreme Court must submit its proposed judicial system budget requests for each fiscal year — because Congress maintains the purse-strings. 

Darrell Berkheimer is a retired California journalist whose career spans nearly 60 years. He filled editor positions with newspapers in Pennsylvania, Utah, Georgia, Texas, and New Mexico. He also is the author of several essays books. Contact him at mtmrnut@yahoo.com

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