It is a useful fiction that the Supreme Court is somehow beyond politics. It is a fiction frequently strained by the actual state of things. 5-4 decisions have been an increasing share of Supreme Court decisions since the mid-20th century, my “favorite” of which probably being that time 5 conservative justices outvoted 4 liberal ones in Bush v. Gore, effectively electing the president on a 5-4 ideologically-driven decision.
So when Senate Republicans decided to refuse any new appointment for the late Justice Antonin Scalia made by President Obama on the grounds that presidents shouldn’t make Supreme Court appointments in election years to allow voters to have a saw, it’s hard to take them at their word. I think it’s fair to say that there’s been a bit of doom and gloom about the potential future of the Supreme Court being hostage to Congressional partisanship. For now, we’re stuck with a eight-justice court, which means a lot of 4-4 decisions. 4-4 decisions defer to the decision made by the lower court, and avoid setting a precedent. But is that so bad? If the rise of 5-4 decisions indicates an increasing trend of partisanship in the court, then adopting an even number of justices prevents decisions more likely to be found along partisan lines from setting legal precedent. Supreme Court decisions are meant to be based on an understanding of the law, after all, so wouldn’t it be neat if we automatically decreased the importance of decisions decided controversially?
There are a variety of problems with this theory:
- The fact that there are an even number of justices doesn’t mean they will always be split along neat ideological boundaries (and assumes that justices fit along neat ideological boundaries, it’s hard to argue that Scalia and Roberts were functionally identical).
- The Supreme Court provides a unifying and clarifying influence on American law. The Supreme Court already decides on which issues are matters for states instead of the federal governments. This system essentially delegates constitutional powers to the Circuit Courts based on whatever happens to be considered controversial among the justices.
- Attempts to decrease the importance of partisan decisions made by the Supreme Court this way just increases the importance of partisan decisions made by lower courts.
- Making the size of the court a subject of open discussion leaves it open to partisan grandstanding. Imagine if every time a justice dies or resigns, critics of the president argue that the new size of the court is actually better now.
So we probably should get around to getting a ninth justice some time or another.
A few programming notes I want to make explicit: I have a lot of thoughts that I am pretty sure are wrong, but I can’t really help but exorcise them through writing them down. I am still partially laying groundwork here, so I have several threads running on the blog instead of competing for space in my head.
Also, I am invoking Betteridge’s Law of Headlines on my own title.