History proves that eight is enough for the Supreme Court
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Several Republican Senators have recently promised opposition to any nominee a President Hillary ClintonHillary Diane Rodham ClintonUkrainian official denies Trump pressured president The Memo: 'Whistleblower' furor gains steam Missing piece to the Ukraine puzzle: State Department's overture to Rudy Giuliani MORE might make to fill the Supreme Court vacancy created by Antonin Scalia’s February death.

Like many, my initial reaction to these announcements was outrage. Upon reflection, however, these threats suggest, however inadvertently, a course worthy of consideration. Consider what follows a “modest proposal.”

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Imagine that either presidential candidate, or ideally both, vowed, if elected, not only to refrain from filling the empty ninth seat but also to seek legislation eliminating it. Congress has this power.

The Constitution calls for the creation of “one supreme Court,” but says nothing of its size, which has over the course of our history fluctuated between an initial complement of six justices and a maximum of ten (notice both even numbers). Why not eight?

Conventional wisdom scoffs at the suggestion on the ground that an even number would lead to deadlocked votes. But our Constitution’s founders did not fear this, and the experience of the last nine months suggests that the risk is less real than imagined.

In that time, the Supreme Court evenly divided in only a very few cases. In none did the Court’s equipoise impose any real hardship on the parties or anyone else. The outcomes were the same as if the Court had simply declined to hear the appeals, which under our current system it is almost always free to do, and which it has been doing more and more frequently over the last 20 years.

In fact, the federal judiciary, as it is currently structured, is uniquely immune to the adverse effects of Supreme Court ties, as when they occur they almost always leave undisturbed a state supreme court or federal appellate court ruling that reflects the most process and consideration any litigant can demand or has any legitimate reason to expect.

And a U.S. Supreme Court evenly divided, both as to number and ideology, as the current Court is, has much to recommend it. Under the existing arrangement, the Justices are obliged to cooperate and driven to rule on narrow grounds, disposing of the actual cases that come before them while refraining from sweeping pronouncements.

Indeed, in one of the most intensely contested cases of the prior term, involving religious objections to the “Obamacare” contraception mandate, the Court’s interrogation of the parties after Scalia’s death revealed that all would accept a rather obvious resolution of their dispute, which makes one wonder why the federal litigation had gone on so long, and at such expense.

As is, the Supreme Court is usefully hobbled, unable to act unless at least one Justice joins with her ideological opponents. The net effect is to moderate the Court’s rulings, and enhance the relative power of lower federal courts, state supreme courts, and non-judicial actors.

These developments promise in turn to diminish, over time, the intense divisiveness currently characterizing Supreme Court nominations, reflected in both the presidential debates and the Senate’s unprecedented two-hundred-thirty-plus-day refusal even to meet with Judge Garland.

The alternative is for whoever wins Tuesday’s election to cram down the throats of the losing opposition a Supreme Court nominee, who will if and when confirmed join four judicial colleagues to form a bare majority that will cram their views down the throats of the dissenting Justices, not to mention all the millions of citizens who voted for the losing presidential candidate.

At the time of writing, Clinton and Trump are running neck-and-neck into the final days of an unusually brutal campaign. Whoever emerges victorious will be unable to claim a “mandate” for any proposition beyond the evident fact that slightly more voters found her or him slightly less repulsive than the alternative. In such circumstances, surely eight is enough.

Chris Bryant teaches constitutional law at the University of Cincinnati College of Law.


 

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