Democracy Dies in Darkness

Monkey Cage

Who should replace Scalia? No one. Here's why eight is enough.

By Ronald Keith Gaddie, James R. Stoner, Jr.

February 19, 2016 at 10:00 AM

The bench chair of the late Supreme Court Justice Antonin Scalia is draped in black wool crepe, a tradition dating back to 1873, at the Supreme Court on Feb. 17, 2016.(EPA/Michael Reynolds)

What would U.S. politics be like if, instead of replacing Justice Antonin Scalia, Congress reduced the membership of the Supreme Court to eight, and not just temporarily?

It might improve democracy. Here's why.

Nine isn't in the constitution, and changing the size of the court does not require an amendment.

The Constitution empowers Congress to set the number of judges on the court. Initially there were six, then seven, then nine, then ten (added during the Civil War so Lincoln could thwart a hostile majority).

Related: [Should this Senate fill Justice Scalia’s Supreme Court seat? Beware the ‘argle-bargle’]

The Radicals — Republicans who dominated Congress after the Civil War — then reduced the court's membership to seven by law, allowing retirements to create vacancies. This deprived Andrew Johnson of the chance to appoint any justice. The court fell to eight by 1867, but was later restored to nine members by the Circuit Judges Act (1869), where it has remained.

Proposing only eight justices would change today's partisan debate

If many people feel that the court is obstructing democracy, a vacancy is the perfect time to make a change. The Senate also could temporarily disrupt the court through inaction, keeping it at eight members and changing the SCOTUS "game."

The Senate could shift the debate from who should succeed Scalia (or more to the point, who should do the nominating) to how many justices should be on the Supreme Court. That might defuse the partisan passions currently raging. And, unless President Obama nominates a pro-life judge or the Republicans accept a pro-choice judge – or all parties agree on some of the other hot-button issues — the court will have to function with eight members for the next year anyway.

What would be the consequences of a Supreme Court with only eight justices?

Most obviously, barring a recusal, there would be an even number of judges — and thus the possibility of a tie.

Ties already happen when there is a recusal. The court has rules and understandings that govern in those cases; a tie vote affirms the decision of the lower court. Most appeals come from the highest state courts or federal appeals courts. The greater possibility of a tie vote probably means less federal interference in state law and more diversity among the circuits. Even better, more ties would reinforce stare decisis—the presumption that any court should respect and build upon decisions courts have made in the past, overturning precedent only with the utmost care and in egregious cases.

Related: [If Obama appoints Scalia’s successor, the Supreme Court will really jump leftward]

These changes are also consistent with the super-majoritarian design and generally conservative nature of the American Constitution. (For instance, the Constitution requires that two-thirds of Congress to agree to override a presidential veto, or send a constitutional amendment to the states, or ratify a treaty in the Senate.)

The ever-present possibility of a tie could help restore faith in the rule of law.

No longer could a single swing justice tip the balance between two settled voting blocs, which effectively means that justice's whims or opinions come to stand for the Constitution. This has been the demoralizing reality for decades — and erodes the idea that the rule of law is distinct from and more predictable than the rule of arbitrary individuals.

Related: [How an Obama Supreme Court nominee could win confirmation in the Senate]

Instead, there might be two swing justices instead of one. Any majority would have to negotiate an equilibrium between these two justices, assuming the differences are distributed on a single ideological dimension. That would diminish the public perception that a single jurist – recently Kennedy, previously O'Connor – was dictator in a game of cycling majorities.

Of course, not all cases are now decided 5-4. And of those that are, the divisions are not always predictable. From 15 to 30 percent of decisions by the court under Chief Justice John G. Roberts Jr. between 2005 and 2015 were 5-4 splits. Many followed the typical liberal-conservative pattern, but not all.

For instance, in the 2014-15 term, a sizable number of the 5-4 decisions did not divide neatly between left and right. And there's often consensus. More than 40 percent of the Roberts court's decisions since he became chief justice have been unanimous.

If a tie were likely, would justices work harder to form majorities or be reluctant to take some cases? That's hard to predict. The court might take fewer cases that weigh in on social change in one or another direction — resulting in fewer polarizing decisions. That might be good for democracy, since such cases take power away from elected representatives and reduce voters' influence.

Other effects are more difficult to anticipate. Attorneys and organizations might be less likely to file appeals if they might lose not just by a contrary vote but also by a tie. Advocacy groups would have to rethink litigation strategies for changing case law and challenging statutory law. It might be more difficult to predict two swing justices than just one. State supreme courts and federal circuit courts might gain prestige, giving incentives for enhanced judicial craftsmanship.

Throughout American history, particular distinguished judges at those levels have earned national reputations among their colleagues; judicial insight and compelling reasons can offer better legal reform than orders from on high. Professors might turn from counting votes to a deeper study of law itself.

Is it possible that, by promoting deadlock on the court, we might reduce deadlock in democracy? There would be few if any costs to the experiment. Neither party would benefit. But democracy might.

Ronald Keith Gaddie is the President's Associates Presidential Professor at the University of Oklahoma, as well as the associate director of the Center for Intelligence & National Security and the general editor of Social Science Quarterly.

James R. Stoner, Jr. is Hermann Moyse, Jr. Professor in the department of political science, director of the Eric Voegelin Institute for American Renaissance Studies at Louisiana State University, and author of Common-Law Liberty: Rethinking American Constitutionalism. 

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