Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 7, 2016

What's so great about 5-4 decisions ASAP anyway? Some further thoughts on reducing the Supreme Court to seven Justices.

Picking up on an issue that most Americans aren't paying attention to at the moment, the New York Times has a house editorial titled "A Coup Against the Supreme Court." I recommend you read it and think about the editors' use of language while doing so. Are they not careless in using words like "coup" and expressing worries about "the very survival of the court as an independent body"?

The editors are concerned that the Supreme Court will be short-handed if Senate Republicans don't vote to confirm a ninth Justice. This worry may not matter after tomorrow's elections, but the editorial seemingly contemplates a Democrat as President with a Republican majority in the Senate, so let's go with it.

There is currently one vacancy on the Court. Three more may emerge over the next few years if one uses the number of Justices aged eighty years or older on the Court as a reasonable indication of the number of vacancies that could occur. With four appointments, the next President may have an opportunity to shape the future of the Court, and of the constitutional law promulgated by that body, in a way that hasn't been seen since FDR.

Should the next President be trusted with that profound responsibility on her own? Would the editors of the New York Times be so convinced of the duty of Senators to confirm presidential nominees to the Supreme Court today if they believed Donald Trump were likely to win tomorrow? Or might it be that our Constitution's requirement of Senate serves a practical purpose by preventing that unilateral executive action? 

I've previously argued that now is the time to reduce the size of the Supreme Court from nine justices to seven. I continue to believe that is the best path for the Court and for our country.

Many of my reasons match Michael Stokes Paulsen's arguments for bringing the Court down to six in "The Case for Shrinking the Supreme Court." I also see the attractions of the arguments offered by John McGinnis and Eric Segall about how an eight-Justice Court might be good for America. With an even number of Justices, though, both of these proposals present a risk of an evenly divided Court. People overestimate the negative consequences of such a division. But there is an admitted cost of disuniformity when lower court decisions go different ways on the same legal issue. If there were seven Justices on the Court, the problem of persistent even splits would not be much greater than if there were nine.

With seven Justices, it would only take four instead of five to conjure up a new constitutional right that lasts as long as a majority of the Court wants it to last. And it might be a bad idea to make it even easier to make up new rights. But the flip side is these invented rights could be undone by four votes as well. Live by the four, die by the four. And worries about that kind of reversal might induce the Justices to exercise more self-restraint. The six- and seven-Justice Court that Chief Justice Marshall presided over in the early nineteenth century, for example, didn't give rise to a series of constitutional rulings undone by later courts. And maybe Justices who have seen the size of the Court reduced on their watch and recognize their own responsibility for that reduction would be less adventuresome than they otherwise would be.

One wonders whether the editors of the New York Times have given thought to the possibility that it might be better if the Court able to operate for a time outside the kind of fevered environment that descends on Washington whenever there is a confirmation hearing.

Why not lower the temperature with a pause? Drop to seven, then let the current vacancy and the next one go.

The editors' favored Justices would still hold a majority on the Court. And the lower federal courts would remain as they have been shaped by President Obama over the past eight years. 

Does our country really need to go through all that we go through with a confirmation process just so that we can make more 5-4 decisions a reality? Does the Court?

Asking these questions is nothing like calling for a coup. The size of the Supreme Court is left up to ordinary legislation. And there's nothing special about nine.

Some of the Court's best years came with a composition of seven. Congress has twice before acted successfully to reduce the size of the Supreme Court at a time of presidential transition. It can do so again.

If the Republicans control the House and the Senate, they can pass legislation anticipatorily reducing the size of the Court to seven, effective as of the next vacancy. President Clinton can veto that legislation, for sure, but she won't be able to fill any vacancies without a majority of the Senate to vote on and for any nominee.

If that were to happen, the Republic would endure. Or so we may hope. And if it doesn't, it won't be because the next President didn't get her nominees confirmed to a nine-Justice Court.

And now let us step back and be real.

All of this has assumed, along with the editors of the New York Times, that we will be looking at divided government after tomorrow's elections, with President Clinton in the Oval Office and a Republican majority in the Senate. If that is how things shake out, though, Senate Republicans would most likely confirm Judge Garland if they can. He is likely to be less dangerous to the Constitution--and older--than a Clinton nominee.

If anything, though, this state of affairs would strengthen the arguments for moving prospectively toward a seven-Justice Court. Justice Garland is even less dangerous to the Constitution on a soon-to-be-diminished Supreme Court. 


Walsh, Kevin | Permalink