The Supreme Court of Spain has 79 judges. The Federal Constitutional Court of Germany has 16 members. The Constitutional Court of Italy has 15, but Italy is like many countries that also has a final appeals court for regular cases, and that tribunal is staffed by 350 judges.

I mention these examples in the context of arguments for “packing” our Supreme Court. Franklin Roosevelt’s effort to expand the court is usually presented as an example of executive overreach and a partisan ploy that backfired. But the problem with the current court is now critical.

Who would imagine that the following system could work? 1) One court has final jurisdiction over many fundamental issues that confront the society. 2) The public is divided over those issues. 3) There are two political parties, which hold incompatible views on those issues. 4) Justices appointed by each party regularly and predictably vote to decide cases in line with their respective party’s position. 5) Justices serve for life terms. 6) The president can nominate anyone he wants to be a justice. 7) A majority of the Senate must confirm. 8) The president and the Senate may be controlled by the same or by different parties.

Once those eight conditions are in place, it’s more or less inevitable that presidents will be unable to replace Supreme Court vacancies unless their party controls the Senate, but when it does, they will be able to confirm virtually anyone they like to a life term. The defeats of Bork and Garland simply reflected opposition parties making rational decisions in the system they were given, and we should expect tit-for-tat from now on.

As I showed in a previous post, there have been periods when Supreme Court nominations have been uncontroversial. Those have been times of bipartisan elite consensus about constitutional questions. When that consensus has broken down, confirmations have been deeply contentious and the outcomes have been determined, to a large extent, by the luck of who controls which branch at which time.

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If I could wave a magic wand, I would establish staggered terms for Supreme Court justices so that replacements become frequent. The stakes of each nomination would fall, and every president would be expected to have a strong but temporary impact on the court–as presidents influence the FCC. But this reform would require a constitutional amendment, since Article III, Sec. 1 decrees life terms.

An alternative is to change the number of justices. That is constitutional, since the number is set by a statute. But I’d change it a lot–to something like 25. Then turnover would be frequent, and the stakes of each appointment would be fairly low. I’d complement that change with a Senate rule that allows nominations to go through unless blocked by a super-majority.

In a large court, most cases are assigned to smaller panels–sometimes by lottery. There are reasonable processes for doing that. A larger court also has a much better chance of representing the diversity of the American people.

Letting the next president name 16 new justices seems a bit much (even if that president’s name turns out to be Joe), so I’d increase the size of the court by one seat every year for the next 16 years.

See also: reforms for a broken Supreme Court;  is our constitutional order doomed?, are we seeing the fatal flaw of a presidential constitution?,  two perspectives on our political paralysis,  and the changing norms for Supreme Court nominations.

This week is the 11th annual Summer Institute of Civic Studies at Tufts’ Tisch College, and we are discussing such topics as identities versus interests and opinions and Gandhi versus Jinnah on means and ends. (The links are to my personal ruminations, but in the seminar, we discuss original texts.)

Coming up soon is the First Ibero-American Meeting of Civic Studies, which two of my friends explain in the video:

According to my translation from the website:

Improving a society requires the commitment of its citizens. Based on this conviction, the Camilo José Cela University Foundation presents the First Ibero-American Conference on Civic Studies, following the trail of the pioneering institution of this academic discipline, the Jonathan M. Tisch College of Civic Life of Tufts University (USA).

The objective is to create a theoretical and methodological framework to promote active citizenship. Civic Studies tries to answer the question “what should we do?” Combining ethical reflection (what is good and right?), analysis of the facts (“what is happening”?) and strategies (” What could work? “). Based on this eminently practical call, Civic Studies tries to make civic education in colleges and universities have a transformational purpose.

The First Ibero-American Meeting of Civic Studies is an initiative of the Camilo José Cela University Foundation. It aims to promote this understanding of civic education in the Ibero-American context. Despite the social and cultural diversity of the countries convened [Argentina, Brazil, Colombia, Ecuador, Guatemala, Mexico, and Spain], the UCJC Foundation believes that the development of this academic discipline can serve to cultivate active citizenship that contributes to the creation of more stable and just societies.

In this first edition, the theme of the meeting will be “The university as generator of citizenship.” We believe in a conception of the university in which both learning and research in any discipline is marked by the civic commitment of its environment. The meeting will involve a week of work between academics and experts with experience in citizenship training: through discussion and deliberation formats, attendees will work from a daily challenge posed by a guest expert, and exchange their own experiences when implementing civic education.”

In preparation for a trip to Spain, I just read J. H. Elliot’s Imperial Spain: 1469-1716. This book is nearly 50 years old, and I don’t know whether Elliot himself or his many students have changed the story profoundly. But the arc is epic and very well told. In 1540, the ruler of Spain also governed the Holy Roman Empire, the low countries (which were the most dynamic economies of Europe), half of Italy, and the Americas from Texas to Argentina. The culture of Spain itself was profound and influential. One century later, his successor could hardly keep Spain itself together, he had declared bankruptcy, and Spanish culture was sinking into a mediocrity from which it would take at least a century to recover.

The various explanations for Spain’s decline are resonant today, and each would appeal to different modern ideological movements.

• Intolerance: Spain expelled its vibrant indigenous Jewish and Muslim cultures and repressed the American natives and Protestants, becoming narrow and closed-minded.
• Authoritarianism: Governed by a strong monarch, Spain lost the creative advantages of freedom and debate.
• Profligacy: The crown consistently spent more money than it had, which was unsustainable.
• Inequality: A few aristocrats held vast, largely untaxed wealth, while most people were close to starvation.
• Machismo: Castilian culture was warlike. Once there were no more opportunities for conquest, militarism was a poor basis for policy.
• A “Resource Trap”: South American silver was like petroleum today–it gave the government an easy source of money that reduced accountability and the need to invest.
• The clergy: Even leading priests and friars argued that Spain had too many people in holy orders, consuming too much wealth.
• Decentralization: The monarch did not rule a unified Spain, but was simultaneously king of several separate countries with their own laws (and even trade barriers against one another). It was impossible to coordinate.
• Corruption: Public officials were expected to live in grand style but were hardly paid. They obtained their wealth by selling decisions, a recipe for poor policy.

I suspect that all these explanations are valid, and the decline was overdetermined. It still represents one of history’s great cautionary examples.

We are going to Spain in February, for a short vacation. As we prepare, I am focusing on St. Teresa of Ávila, in part because of the opening lines of Middlemarch (which is my favorite book):

• Who that cares much to know the history of man, and how the mysterious mixture behaves under the varying experiments of Time, has not dwelt, at least briefly, on the life of Saint Theresa, has not smiled with some gentleness at the thought of the little girl walking forth one morning hand-in-hand with her still smaller brother, to go and seek martyrdom in the country of the Moors? Out they toddled from rugged Avila, wide-eyed and helpless-looking as two fawns, but with human hearts, already beating to a national idea; until domestic reality met them in the shape of uncles, and turned them back from their great resolve. That child-pilgrimage was a fit beginning. Theresa’s passionate, ideal nature demanded an epic life: what were many-volumed romances of chivalry and the social conquests of a brilliant girl to her? Her flame quickly burned up that light fuel; and, fed from within, soared after some illimitable satisfaction, some object which would never justify weariness, which would reconcile self-despair with the rapturous consciousness of life beyond self. She found her epos in the reform of a religious order.

Teresa was always in peril of her life. Even her ancestry was a danger to her, for her grandfather Juan was a Jew. The Inquisition (skeptical of his conversion) paraded Juan through Toledo in a yellow robe embroidered with lying tongues. Who knows whether inwardly he recited the Ave Maria or the Hebrew psalms of exile?

Juan fled to Ávila and raised his son to be as good a Catholic as a man could be. The family became wealthy and attained the minor nobility. But then his granddaughter Teresa arrived to challenge and perplex them. First she ran away to a nunnery–which was not so unusual–but she would not behave like a proper nun, saying the ritual Latin prayers prescribed by tradition and authority. Like her grandfather’s grandfathers, she felt compelled to struggle with ancient texts and apply their paradoxes to her own implacable conscience. Like a Protestant heretic, she held private dialogs with Jesus in the common tongue, often perceiving him as a bodily (if invisible) presence in the room beside her. Other spirits also visited her as she exercised her prodigious memory and imagination. Angels arrived frequently as intellectual presences and once as a visible form. On one unforgettable occasion, a seraph drove a fiery lance again and again through her heart and left her scorched and tingling.

Women who summoned spirits through private incantations were generally known as “witches.” Friends and elders warned Teresa that her visions could be diabolical, and privately she feared that they were. Yet her struggles with her conscience led inevitably to terrifying moments of insight, and her imagination made those moments tangible. It was not by choice that she was sensitive and receptive. But it was her choice to train her sensitivity through laborious intellectual and spiritual exercises. The results–audible conversations with invisible spirits, reports of fiery angelic penetrations–could hardly fail to provoke deep suspicion.

All of Spain’s most dangerous enemies acted rather like Teresa, whether they were Mayan priests in trances with bloody hearts in their hands, Protestants claiming brazenly that they conversed directly with God, witches fornicating with Satan, or mystical Jews and Moors enraptured by musty texts.

If her spiritual exercises weren’t bad enough, Teresa was driven to condemn the social order by force of her example. Daughter of a wealthy knight, she had run away to a convent for gentle ladies. It was a comfortable place where spinsters lived together in only partial seclusion. One spoke there in refined accents, relied on servants for manual labor, entertained visitors, and expected the deference of the poor. The cloister was decked in American gold; the porcelain Christ-child on the altar wore the finest Manila silks. But the real Jesus had consorted with poor fishermen and prostitutes. When Teresa vowed poverty, she meant it. She founded a new convent that was utterly humble, just a rough stone shed with straw on the floor. She walked barefoot and ministered to the poor and sick. Her closest confidants were a motley assortment of women and men from every social background.

Teresa was a tireless organizer as well as a mystic. She traveled thousands of miles, wrote innumerable letters, personally founded scores of reformed convents. She took flawed human material and built institutions. Yet the arrogant powers always circled her. Her friend John of the Cross was kidnapped, imprisoned in a Toledo monastery, and there viciously flogged every morning for favoring reforms like Teresa’s and for writing unpretentiously moving poetry on her model. She eluded the same enemies year after year, clearly driven by a compulsion that commanded respect against all odds.