The size of the Supreme Court is fixed by statute and has been constant since 1869. But the court looks nothing like it did 150 years ago. It wades into highly politicized issues more frequently, judicial tenure has doubled, and the rate of 5-4 decisions has ballooned over the last half-century.
Moreover, the mass-media coverage of the court and unfortunate, yet popular, view in American law schools that we should judge adjudications on their social consequences has led many to view the least democratically accountable branch as a plebiscitary body. It’s no wonder, then, that the public widely views the Supreme Court as partisan rather than technocratic and that senators have significant incentive to politicize the confirmation process.
Thus, the Supreme Court looks vastly different from its much more humble origins, but its structure has remained stagnant. The court need not consist of nine members or even an odd number of members. In fact, the court started with six and has included as many as 10. It’s time for Congress to return the institution to an even-bodied court. Doing so would create a more legitimate and less politicized institution.
A Saner Confirmation Process
An odd-numbered Supreme Court is far from the only factor that contributes to tense confirmation battles. The federal judiciary still maintains life tenure, which has been almost universally repudiated in Western civilization. But the Supreme Court’s ability to decide contentious issues by a single vote contributes to the incentive for senators to engage in drawn-out confirmation fights.
That’s because the court’s ability to decide cases by a single vote means one change in membership can lead to significant legal decisions being outright reversed or significantly narrowed. Abortion, same-sex marriage, the right to bear arms, religious liberty, and a host of other politically contentious issues have hung by a single vote for years.
An even-bodied Supreme Court would run into this situation less frequently, because a single change in membership would be insufficient to reverse case law. Two justices would need to change (assuming sitting justices did not change their minds) in order to do so, decreasing—although not eliminating—the stakes of any single nomination.
A Less Politicized Court
An even greater benefit comes from the changes in how an even-bodied Supreme Court would operate. Given the risk of split decisions on politically charged cases—thus setting no precedent—an even-bodied court would hesitate to take on a case unless the justices were fairly certain they could adjudicate it by at least a two-vote margin.
A court less involved in politically contentious cases would be perceived as less partisan. Moreover, where the court did feel the need to take on a closely divided case, it would have a much greater incentive to issue narrow rulings as it did in Little Sisters of the Poor, which both sides have claimed as a victory. As others have pointed out, that case models what the court should be doing.
The risk of split decisions would primarily stay the court’s hand in emotionally and politically charged cases—precisely those cases where a human justice is most tempted to constitutionalize a non-constitutional issue or rewrite a statute. The court already has a good track record of avoiding split votes in cases that aren’t politically charged. For instance, in October Term 2005, the court decided 23 relatively tepid cases by an even court without splitting.
The four cases the court split this term are not an argument to the contrary. No shortage of commentators have pointed to this past term’s splits as purported proof that an even-bodied court doesn’t work. These writers miss that the court granted all these cases expecting it would decide them with nine members.
But when the court has known it would have to adjudicate cases with an even number of members, it has carefully avoided taking cases that risked even splits. Via the Supreme Court Database, we can verify that the court has only done so five times when it anticipated a vacancy.
What’s more, the court likely decided to grant cert. to several of those cases before the vacancies arose. The court granted two of those cases within days of Justice Robert Jackson’s death. Two more occurred concurrently with (or shortly after) a justice retiring. Only the fifth breaks the trend, but it was granted during Justice Abe Fortas’ vacancy—the longest vacancy in 125 years and one that consumed two failed nominations.
Thus, the historical record shows that the court avoids taking on cases that risk an even split. As such, an even-bodied court would either hear and dispose of cases on narrower grounds or allow litigation of politicized issues to percolate within the courts of appeals.
Shifting Adjudication To The Courts Of Appeals
Shifting adjudication over politically contentious cases to the courts of appeals carries with it two affirmative goods. First, it dilutes decision-making power across a greater number of judges, which decreases politicization. Second, allowing litigation in multiple venues helps clarify and identify legal issues.
Before his untimely death, Yale Law Professor Robert Cover argued that allowing parties to litigate similar issues in both federal and state courts created an avenue for parties to learn from previous litigating experiences. This argument extends to non-overlapping federal circuits.
For instance, in the Little Sisters of the Poor litigation, the government lost almost all its cases in district courts but won at almost every circuit court after adapting its litigation strategy in response to earlier skirmishes. Permitting greater circuit court litigation means a greater number of petitions for rehearing and a steady whittling away of secondary issues until the core of the dispute stands alone. If, at the end of the line, the circuit courts still haven’t fully dealt with an issue, the Supreme Court can issue a narrow judgment in the vein of Little Sisters of the Poor.
Implementing This Proposal
Because eight members currently sit on the Supreme Court, Congress is uniquely positioned to strike a political compromise where both parties effectively appoint one person to the court. Congress can do this by passing a law to create another seat. Although Congress cannot directly control whom the president nominates, Congress could condition the seat’s creation on the president nominating a pre-approved person and that person being confirmed in a joint up-or-down vote concurrently with the president’s second nomination.