Amidst the partisan clash over whether a Supreme Court nominee should be confirmed in an election year, there’s a rising philosophical debate over whether the high court should even have nine justices.
In recent weeks, legal experts have begun arguing that democracy might be better served by eight justices.
There is no constitutional requirement for the Supreme Court to have nine members. Congress has the power to change the number of justices and did so several times during the early years of the republic, finally settling on nine in 1869.
Now, the magic number may be eight.
The argument, in part, is that over the past decade, many cases have been decided by a 5-4 split, which gives the justice most likely to switch sides too much power.
Under Chief Justice John Roberts, 167 decisions have been the result of a 5-4 split, many of them hinging on the swing vote of Justice Anthony Kennedy. Indeed, Roberts’ court had the highest percentage of 5-4 splits in the history of the court.
“Justice Kennedy was the deciding vote 85 percent of the time, and 95 percent of the time in important constitutional cases,” Eric Segall, a professor at Georgia State University College of Law, told The Huffington Post. “So we’ve been living for the last 10 years in a world where Justice Kennedy gets to say what the law is about affirmative action, abortion, campaign finance reform, gun rights and all kinds of other things."
“Do you want to live in Justice Kennedy’s America?”
- Law professor Eric Segall
Kennedy has at times been a proponent of progressive individual rights -- from co-authoring the 1992 opinion guaranteeing women access to abortion free of "undue burden" to recently holding that states may not deny gay couples the right to marry -- though his decisions are generally conservative. But that judicial flexibility doesn't give him a golden gavel, nor should it grant him the final word. Like his colleagues, he's just one justice whose decisions are often influenced by his personal experience or ideology.
Segall, a self-described liberal, said there are only two choices: “Five Supreme Court justices imposing their agenda, which has meant Justice Kennedy imposing his agenda for 10 years, or having an even number of justices which can’t impose that agenda as forcefully. … I mean, do you want to live in Justice Kennedy’s America?”
Other law professors are warming up to the idea of an eight-member court for a different reason -- that an evenly divided court has less power to reshape society.
“The Supreme Court today is both political and powerful in ways that would be unrecognizable to the framers of the Constitution,” Pepperdine University law professor Barry McDonald wrote in The New York Times last week.
“Over time … the court’s vision of its role in our democratic system changed, from dispute resolver to supreme arbiter of all matters of constitutional law, so that elected branches of government at federal and state levels were bound to accept its interpretations," he wrote.
But politically charged fights, such as abortion and gun rights, should be left to the elected branches of government, McDonald argued. A court -- much less a 5-4 court with a single swing-voting justice -- should not be settling those issues.
“It is this situation, and not 4-to-4 deadlocks, that poses a real threat to the American people, at least if they care about governing themselves,” McDonald wrote.
As others have argued, an eight-justice court would be more likely to lower the political temperature and reach more moderate compromises in high-profile cases.
Indeed, the Supreme Court has shown a less ambitious face since Justice Antonin Scalia's death. A notable example was Zubik v. Burwell, a recent non-decision in which the high court tried its best to avoid a 4-4 split by ordering lower courts to consider a suggested compromise. “The Court expresses no view on the merits of the cases,” the justices wrote in a likely effort to tiptoe around the dispute's ideological clash between reproductive rights and religious liberty.
“Sometimes the law and the Constitution demand an answer, not a compromise.”
- Elizabeth Wydra of the Constitutional Accountability Center
Zubik is a troubling case for some liberal court watchers who maintain, like Justice Ruth Bader Ginsburg did recently, that eight is not a good number for the Supreme Court.
“We expect our court to be able to provide answers to questions of exceptional national importance that come before it -- and sometimes the law and the Constitution demand an answer, not a compromise,” said Elizabeth Wydra, president of the Constitutional Accountability Center, which recently published a report examining the harms wrought by a short-handed Supreme Court. “Moreover, we haven't really seen these purported brilliant compromises. Instead we've seen the court issue some non-decision decisions, leaving major questions unanswered.”
Wydra noted that those 5-4 splits frequently involve issues of fundamental rights. The Supreme Court already takes less than 1 percent of the thousands of cases seeking the justices' attention. If an eight-member court then divides evenly, there is no decision for the nation, and the law may differ from one part of the country to another.
“That's not what the Constitution contemplates,” she said.
However, Segall counters with his own high-court hope.
“If it's really true that uniformity is important for uniformity’s sake, then the Supreme Court will find a way” to reach agreement as an eight-member court, Segall said. “They will fight for the 6-2. They will find a way.”