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What should be done with Justice Scalia’s Supreme Court seat?

Justice Ruth Bader Ginsburg has publicly stated that the US Supreme Court does not function well with eight members. I disagree. Under present circumstances, it would be best for the country and the Court to abolish the vacant Supreme Court seat held by Justice Scalia and to proceed permanently with an eight member court.

The country is divided ideologically. The Court should reflect that divide.

There is nothing magical about the number nine nor is there anything magical about having an odd number of justices. The Constitution allows Congress to decide how many justices there will be. The number has changed at various times in American history and has often been an even number. The Court started with six justices and at one point had ten justices.

Congress and the President can set the number of justices at a number that is appropriate for today. With the current eight justices, the Court is now in rough ideological balance. That is the way it should be.

Keeping the current eight-member Court would mean no more 5-4 votes on contentious issues. Those issues would instead be resolved by political processes by elected officials rather than by unelected justices.

The Court has demonstrated that with eight members it can address important issues of constitutional law. Consider, for example, the Supreme Court’s recent decision in Puerto Rico v. Sanchez Valle. By a 6-2 vote, the Court concluded that it would violate the Double Jeopardy Clause of the Fifth Amendment for Puerto Rico to prosecute defendants for illegal gun sales when such defendants had already pled guilty to analogous federal charges. Because Congress is the “ultimate source” of the prosecutorial authority of the Commonwealth of Puerto Rico, it would constitute Double Jeopardy for Puerto Rican prosecutors to press charges after defendants admitted their guilt on equivalent federal gun running charges.

This is an important constitutional decision which the Court reached with eight members. If the Court had divided 4-4, there would have been no decision but instead further debate and discussion about the Double Jeopardy Clause. Debate and discussion should be embraced, not shunned.

Consider in this context the Supreme Court’s recent 4-4 split in Texas v. United States, concerning the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA). The Court’s division means that advocates of that program must now advance that program through public hearings, in which all sides can be heard. This is a possibility advocates of DAPA should embrace, rather than bemoan.

Right after Justice Scalia’s death in February, I had proposed that the President and Congress agree that one of the living former justices be given a temporary recess appointment back to the Supreme Court. Since, the Court has functioned with eight members, just as it has functioned in the past with an even number of justices.

The membership of the Court should be reduced now, before we know which party will control the White House and which party will control the Senate. This reduction would eliminate the Court as a political issue in the fall.

The Court should not be a cockpit of partisanship. The rule of law would be strengthened if we instead acknowledge the divisions in this country and keep the current eight-member Court which reflects and balances those divisions.

Featured image credit: United States Capitol Rotunda, Washington, D.C. by Ken Lund. CC-BY-SA-2.0 via Flickr.

Recent Comments

  1. Clyde Tressler

    I agree with your point that the 8-member Court functions in a manner that better represents the divided electorate. I also think it re-balances the power of the judicial branch of the Federal government so that it is more in line with the structural notion of checks and balances.

  2. Dan

    Interesting proposition. If eight is great, let’s retroactively abolish Justice Scalia’s votes throughout his entire tenure on the court – it would be as if this nine member nightmare never happened. Of course a few decisions would also change retroactively too.

  3. kelechi Nwadigo

    Interesting point. How ever, the Supreme Court decides to hear a case based on at least four of the nine Justices of the Supreme Court agreeing to grant the Petition for Certiorari. If four Justices agree to grant the petition, the Supreme Court will consider the case.

    Under your model, I can we can only imagine how ugly the legal sysyem will get if an important looming potential precedent setting case gets a tieing vote. What now? Do we go back and re-debate to grant a writ for hearing? Seems like alot of going back and forth here; A significant needless hurdle is the last thing the justice system needs, imo

    Also, we can very well agree that it is very possible most decision will now most likely end in several ties due to an even court, under your model. Sound good on scholarly legal perspective but for brevity in the justice system, as for any swifness…I think not.

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