Breakeven: How an Eight-Member Court Can Save the Judicial Branch

Editor’s Note: This article was written for the Princeton Tory Freshman Contest in November.

 

“Why does the Supreme Court normally have an odd number of justices?”

“I don’t know… why?”

“Because if it had an even number of justices then it would be a normal court!”

 

Sure – it’s an absolutely terrible joke, but when you go around asking people that question, it’s more or less the punchline people are expecting, at least if they don’t answer the question themselves with the classic (and seemingly obvious): “Because if it didn’t, then decisions could result in a tie.”

To be honest, when I asked people the question, I had never intended it to be a joke, but rather a survey question.

Three demographics, as it were, ended up being revealed by my informal survey. There were the confident folks, who thought the question was mildly inane. They gave the ‘tie’ answer. There were those who thought it was a joke and gave the conventional “I don’t know, why?” answer that the joke structure typically demands. Finally, there were the suspicious ones, who sensed something was amiss upon being asked a ridiculous question with a seemingly obvious answer. Hesitantly, and skeptically, they offered a restrained “I don’t know,” occasionally followed by “Is it not that it would be a tie?”

Kudos to those people.

Because, turns out, it isn’t. The negative effects of a Supreme Court consistently being subjected to tied decisions are definitely a reason for the Court to continue having an odd number of justices but do not, however, provide a reason for the establishment of nine justices in the first place.

That, in fact, is historical. And had nothing to do with the founders presciently requiring there be an odd number of justices in the Constitution because, frankly, they didn’t. In fact, during the first federal congress, when the Court was initially established, the founders present in the legislative body didn’t even consider the topic, as evidenced by the fact that the first iteration of the Supreme Court had… six justices.

Again, that’s not a joke.

See, originally, the Supreme Court had nothing to do with ties. The Articles of Confederation, per usual, had left everything to the states, including not just certain types of court decisions, but all of them. The federal government, under the Articles, had no court. Thus, when the Supreme Court sprang into sudden existence after the creation of the Constitution, it retained a lot of qualities that it had had during the initial period under the Articles. In other words, it really wasn’t much of anything and its existence was more of a precaution against judicial problems that would have occurred without it. Namely: the list of cases that would fall beneath the court’s powers of original jurisdiction if they sprung into existence – admiralty and maritime, controversies where the US is a party, interstatal controversy, etc.

The emphasis of the Constitution’s Article III was, and remains, primarily concerned with things states cannot possibly, without conflict of interest have their respective adjudicators preside over. For instance, a New York judge could not be expected to adjudicate a case between a New York citizen and the state of Rhode Island for obvious reasons. Similarly, a New York judge could not be expected to adjudicate a case between the United States of America and an offshore drilling operation in national waters. Thus, the Supreme Court – problem solver, with a specific, intended scope of action.

Course, the founders, being as cautious and vague as they ever were inserted a clause at the beginning of Article III that might as well have been a direct analog to the Commerce Clause and the Necessary and Proper Clause, but for courts. So when they said the Court’s power “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,” and then appointed a group of highly capable justices whose primary jobs were, in essence, to sit still, things started going awry.

Firstly, though, back to that six justices thing. Since the majority of judicial powers had remained in the hands of the states, the judicial system had been set up accordingly – three circuit courts for three circuit districts. Circuit districts were designed so that judges wouldn’t become too distant from their “constituents,” if you will, by having them ride (literally, for most of American history, on horses) from town to town, adjudicating. Supreme Court justices themselves weren’t exempt from this, as two (ultimately one, after the Judicial Act of 1801 established more districts) were allotted to each circuit to supplement the local district judge. We’ll get back to that.

Anyway, in 1803, Chief Justice John Marshall was on the bench, the case Marbury v. Madison before him. Two of his fellow justices, Cushing and Moore, were out sick. Naturally, they didn’t participate in the judicial proceedings. (Because they were sick – I’d like to reiterate the impact of that particular flu on the future of the United States.) Marbury v. Madison would end up becoming one of the most influential decisions in Supreme Court history, because, unlike similarly famous cases such as Brown v. Board or Roe v. Wade, Marbury changed the fundamental scope of the Supreme Court by electrifying the vague clause in Article III, giving the Court power to actively adjudicate the entirety of cases arising under the laws of the United States. And so was established the writ of certiorari – the Supreme Court’s ability to reach down to any level of appellate jurisdiction and snatch cases. Any decision, on any case made by the Supreme Court, because of the newfangled power of judicial review would become legal precedent, equal with the Constitution itself, because it was an interpretation of the Constitution itself. This power, and what would come of it, would allow for a critical change in the Supreme Court – the ability to extend its decisions beyond the bounds of the case at hand, not just into future judicial proceedings, but future legislative proceedings as well, the limits of the supremacy clause now denoted by the Court.

Less than two decades into the Supreme Court’s run, we can see two threads emerging. One: a judicial court with legislative clout obtained by rational conclusions about what it means to interpret the law and be a judge with discretion. And two: a steadily growing court propelled by new judicial districts being established as America grew westward.

We skip forward to 1837, and the Supreme Court’s up to nine justices. Nine circuits to ride, nine justices to ride them. Tocqueville has come and gone from America, astutely noting that the only real checks and balances on the Court were the facts that it was a court, and could only make decisions of super-massive consequence in the event that a case materialized to do it and, that “enlightened” judges acted discretionarily within the bounds of their job description.

A third thread would materialize in 1832, when President Andrew Jackson refused to comply with the Supreme Court’s verdict in Worcester v. Georgia, and had booted the Cherokee to Oklahoma anyway, telling the Supreme Court and the seemingly immortal John Marshall to enforce the decision, if they could. They couldn’t, but the thread was created anyway – the executive branch thinking it could coerce the judicial branch into doing what it thought best.

By 1869, California was a state, and the tenth district had come into existence. However, the kerfuffle that had been the Civil War and the disaster that had been Andrew Johnson inhibited the Supreme Court from ever getting its tenth justice, as had the justices themselves finally becoming so fed up with circuit riding (and bandits) that they literally refused to do it anymore. So, by the time Ulysses Grant had taken the presidency, the Supreme Court was held in a local court building in DC. People came to it, no longer it to them, and there were nine justices. Permanently. Not because of some tie prevention rule, remember, but because justices didn’t want to get mugged.

Apparently, though, by the time Franklin Roosevelt was president, the entirety of the country had forgotten why there were nine justices to begin with, including FDR. At this point in history, all three threads (executive overreach, legislative judiciary, justice quantity) became inexorably entwined when Roosevelt recalcitrantly attempted to add six more justices to the Court because the nine currently on the bench had been opposing his big government New Deal policies on constitutional grounds.

In other words, in order to foist his political agenda on the American people, FDR sought to use his executive power to offset the partisan balance of the court through a numerical advantage so that his legislative policies would go through smoothly.

Management of the judiciary had become a numbers game, the country’s political future held in the balance.

 

So when, in the third presidential debate this year, both Hillary Clinton and Donald Trump made their respective statements about the Supreme Court, nothing had changed.

“We are going to appoint justices that feel very strongly about the second amendment.”

“We need a Supreme Court that will stand up on behalf of women’s rights, on behalf of the rights of the LGBT community, that will stand up and say no to Citizens United…”

“I am pro-life and I will be appointing pro-life judges.”

“…we stand up for the rights of people in the workplace, that we stand up and basically say, the Supreme Court should represent all of us.”

 

The Supreme Court of the United States currently sits at an unusual eight justices, as the currently Republican Congress (also guilty of perpetuating the legislative judiciary) has refused to consider President Obama’s proposed appointee, Merrick Garland, because Garland’s a scurvy liberal… supposedly. Three justices’ futures on the bench seem tenuous as they approach “retirement age,” if you will. Both candidates promised to appoint justices not based on their fitness to adjudicate, but rather on their likelihood to customize the Constitution to the preferences of their respective constituencies.

All of these things, honestly, are a problem. Not the fact that there are currently eight justices, and only eight justices, on the bench, but the fact that everyone involved with filling the vacancy has no concept whatsoever about what the originally intended purpose of the Supreme Court actually is.

Tocqueville was right, unfortunately. Out of his two checks on the court, only one remains – the fact that’s it’s still a court and beholden to court procedure. The other – that judges are enlightened enough to act discretionarily and voluntarily within the bounds of what it conventionally means to be a judge, is rapidly going by the wayside, and will, most certainly, if either Clinton or Trump gets her or his hands on the vacant seat. No longer will a judge be primarily a judge, but rather someone who “represents all of us,” in Clinton’s words.

Most critically dangerous, though, is that the collapse of that check does not take with it the legitimacy of the Court. The Court remains aloof, and since it’s remained capable of actually adjudicating decently, unlike its overreaching executive and stagnated legislative counterparts with regard to their roles, it has also gained the American people’s reliance. Because it not perceived to be tied to any lobbying interest groups or the big money that drags down the seeming authenticity of congressional and presidential actions, it has become the least dysfunctional branch, one which many of Americans rely upon for political action.

Terrifyingly, this monopoly on purest legitimacy reeks of something horribly un-American: practical dictatorship, or the concession of political right to republican rule unto a “good” oligarchical ruler.

Blame who you will – Article III’s vagueness, Marshall’s judicial activism, Jackson or FDR’s overreaching, the two justices who got sick for Marbury, or the ones who cemented the court’s membership numbers by not wanting to circuit ride – but the Supreme Court has gotten away with getting away with an inconceivably vast amount of power. And we’re all completely okay with it.

Thing is, the moment it swings in a direction that we’re not, and there happens to be a simple majority holding a political opinion dissident with half of American opinion that isn’t the least bit ashamed to act politically, then we’ll stop being so enamored with our legislating judicial overlords. Pity for us, though, because our legislating judicial overlords they’ll remain.

Course, if there were some way to inhibit the ease by which that majority could form, and maybe dampen the Supreme Court’s power and impose some sort of consequence upon them if they failed to act judicially and tended too much toward legislation, then maybe we could give rise to an actual check on the Supreme Court, not just a semantic one.

 

Leave it at eight, and the problem’s solved.

 

That instinctive recoil is the telltale grief a subject feels when their benevolent monarch is assassinated. And truly, it would be fairly painful if dictatorships, no matter how kind, were part of our American social contract. Trouble is – they aren’t. This one slipped through.

Truly, if a group of judges whose primary job is to read documents and comprehend their reading, is split so ferociously in opinion that they’re going to come to a 5-4 decision, should the entire country be made subject to it?

On the great moral and political matters that our Court has managed to assert control over, should we be required to submit to their authority when its justices can’t seem to agree on how to read a sheet of two-hundred-year-old parchment?

No. Of course not. We don’t declare an alleged felon guilty without the unanimous decision of a jury. We shouldn’t allow the definition of guilt to be decided 5-4 by some judges with legislative inclinations appointed by beholden executives.

A 5-3 decision is not a debilitating ask. If our Court is going to uphold its responsibilities to “all of us,” as Clinton would have it, then it should voluntarily support the dissolution of the precedent of its most controversial opinions. 4-4 decisions, after all, wax per curiam, and are deflected back to the appellate court district from whence they came, that decision upheld and no precedent of thundering gravitas established.

And realistically, that’s what the court system was for in the first place. If we take a hard look at Article III, the Supreme Court wasn’t brought into existence to make sweeping moral pronouncements – it was to make decisions where the states logistically couldn’t. An even-numbered court was never believed to be a hindrance to that ability. After all, the founders started out unabashedly with six justices. They never would have imagined that justices could disagree so fundamentally on matters of interpretation.

 

The Supreme Court’s odd number of justices originally had nothing to do with avoiding ties. It was historical. But perhaps… maybe that number should be related to constructive deadlock. It’s one of the only ways to save our judicial branch from itself.

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