Politico

Opinion | For the Supreme Court, 8 Justices Would be Better than 9


Republican efforts to confirm a third Supreme Court justice in President Trump’s first term have reignited the debate over whether it’s time to reform the nation’s highest court. Justice Ruth Bader Ginsburg’s passing has opened a gusher of proposals, ranging from court-packing to term limits.

Reformers from both ends of the political spectrum may disagree on exactly what’s wrong with the Supreme Court, but they often agree on this: that the court is tasked with resolving too many of our political disputes and that both Congress and the White House have become over-reliant on it. Yet, since both parties also disagree with how to reform it, the court has been pulled into our politics and campaigns more and more every cycle.

So here’s a counterintuitive idea: Let’s keep the court to an even number of justices—say, eight.

Common sense might suggest that an odd number is better because it’s harder for the court to tie. But we think an even number—one chief justice, and seven associate justices—would actually be better for a bunch of reasons: It would curb its political interventions, make it more likely to rule on narrower grounds and encourage more compromise. Last, but not least, it would also be the easiest reform idea to implement while causing the least amount of harm to the third branch.

And now, with a rash of Covid-19 diagnoses disrupting plans to swiftly confirm Amy Coney Barrett to Ginsburg’s seat, there’s an opportunity for Republicans to stop the rush and ask: Could eight justices be enough?

As it happens, an even-numbered Supreme Court was good enough for the Founders and the first Congress. The Constitution does not specify how many justices should serve on the Supreme Court; it is up to Congress to determine the number. The very first Congress created a six-person court (one chief justice and five associate justices) when it passed the Judiciary Act of 1789.

The court’s path from six justices to nine was not a straight one. Two years after the nation’s first Judiciary Act, President John Adams and his Federalist allies shifted the court from six justices to five. Soon after, President Thomas Jefferson and Republicans returned the court’s size to six justices. Congress added a seventh justice in 1807. Congress again expanded the size of the court to nine justices 30 years later and to 10 justices during the Civil War. After the war, Congress reduced the court’s size to nine justices—where it stands today.

The Founders, and members of the first Congress, like Alexander Hamilton and James Madison, would not be familiar with our reliance on today’s nine-member Supreme Court to resolve our most controversial issues. In Federalist 78, Hamilton observed of the court that it “is beyond comparison the weakest” of the three federal branches. Why? Unlike Congress which “commands the purse” and the Executive Branch that “holds the sword of the community,” the judiciary has “neither force nor will, but merely judgment.”

The Founders envisioned that the place where public policy would be debated and decided was Congress. Instead, these days policy is all too often planted in Executive Branch agencies with insignificant oversight or review. Political expediency and the fear of difficult votes is often the catalyst for Congress to give presidents growing emergency powers and foreign policy authorities.

And when a conflict does arise between the two political branches, each is eager to run to the judiciary, the designated apolitical branch, to resolve their differences. The political branches’ eagerness to solve disputes in the courtroom often puts the Supreme Court in an untenable position. Today, a decision by the court on any controversy with a legal hook evokes criticism and questions about its legitimacy. Similarly, the court’s refusal to consider certain political controversies stirs similar outcries.

In this light, an even-numbered court might save the judiciary while also saving our politics.

To begin with, it would be much easier to implement an even-numbered court than it would be to enact term limits. Like past Judiciary Acts, it would take a simple act from Congress. Term limits, on the other hand, as many of its proponents concede, would require amending the Constitution. Term limits could take decades to fully implement.

Court-packing is even more troublesome. Although it would require only legislation to expand the Supreme Court, doing so would invite nearly immediate political retribution. Like the elimination of the filibuster for judicial nominees, it is not difficult to see how Senate Democrats pushing for an 11-member Supreme Court would soon balloon to a 13-member Court once Republicans retake political control.

Importantly, an even-numbered court does what other plans do not: Takes more political controversies away from the court and gives them back to the political branches where they belong. In the case of a 4-4 tie, the court issues no substantive opinion, effectively affirming the judgment of the court below. The case does not set a nationwide legal precedent, and the law is the same as it was the day before.

Despite potential political frustration with an even-numbered court, much would actually stay the same. Contrary to popular belief, unanimous (or nearly unanimous) decisions are far more common than 5-4 decisions. Looking at the Supreme Court’s most recent term, only 23 percent of its cases were 5-4, compared with 66 percent that were either 9-0, 8-1 or 7-2. This is similar to past court terms, as the percentage of 5-4 decisions since 2005 is 21 percent.

Further, every justice agrees with the others more than they disagree. Even Justice Clarence Thomas—considered by some the most conservative member of the court—agreed with the late Justice Ginsburg over 60 percent of the time in the past term. That means most of an eight-member court’s work would stay the same, and the great majority of its cases would be resolved just as before.

In cases that might ideologically suggest a tie, to avoid nonresolution, an even-numbered court may be motivated to gain consensus by tailoring rulings more narrowly, which would avoid more wide-reaching, controversial decisions. How the court functioned soon after Justice Scalia’s passing may serve as a clue to how it might function with eight members. At the time, Chief Justice Roberts remarked, “we spend a fair amount of time—maybe a little more than others in the past—talking about things, talking them out. It sometimes brings you a bit closer together.”

For legal cynics, an even-numbered court also presents a sound strategy: Those who compromise win; those who don’t lose. Justices able to seek more consensus and agreement will see more success than justices who refuse to find a common legal ground.

The way we think about the judiciary has changed. The years of confirming justices by over 90 votes—as the Senate did for the late Justice Ginsburg in 1993—may be a wistful memory. If we must reform the court, let’s do so in a way that helps rebalance our teetering separation of powers system.

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