With the relentless march
of politics, and the forever ratings chasing news, it's easy to
forget the important events, or non-events as they fade over time.
The Supreme Court is in
summer recess, which lasts till early October, and not hearing any
cases. With no cases to judge, the outcry against an eight member
court has receded. Aside from the rare reference to Merrick Garland
or an insufficiently staffed court, Democrats have allowed the issue
to lapse, and Republicans are content to follow.
But starting in October as
the Justices begin hearing cases, and the Presidential election nears
its conclusive and bitter end, Democrats will insist Republicans have
hobbled a crucial Federal institution, and they will retort the
Democrats are coining political cash out of an independent branch (which
both are). Considering four Justices; Kennedy
(79), Thomas (69), Ginsburg (83), and Breyer (77) are sixty-nine or
older it's likely the next president will have an opportunity to
appoint three or more justices (there's also Antonin Scalia's empty
seat). It's possible a single term president only replaces
ideologically similar Justices, but a two term officer will strain
the resolve of those holding out, and may seat five.
Hillary Clinton and Donald
Trump, citizens are reminded daily, are the least
popular candidates since recording of
unfavorablity rankings began back in 1980. Johnson and Stein's poll
numbers are surging (to almost ten and five percent respectively)
as they rally the conservative and liberal protest votes. But the
core supporters of Clinton and Trump insist these protest voters are
selfish and flaunting their privileged. They insist, not voting for
the party could hand the Supreme Court to the other side for decades.
A popular
solution to the politicization
of the Supreme Court is amending the Constitution, transforming
Justice into an eighteen year position, and spacing out these terms
so each four year presidential term fills one seat. A worse
idea would make Justices undergo
retention
votes by the public. The judiciary is
supposed to be an independent branch, protected as much as possible
from politicization. Imagine if Justices had to raise money to
finance campaigns for their reelection. Would you feel any safer
about their independence if they took money from banks, unions, or
gun manufacturers?
Justices are remarkably
hard to remove, because as Article Three of the Constitutions states,
they “shall hold their Offices during good Behavior”. Though
it's never been debated what 'good behavior' means, it appears to be
a high bar, because only one Supreme Court Justice has ever been
brought to trial. Samuel Chase, a signer of the Declaration, was
impeached in 1805 because President Jefferson believed the Supreme
Court was in the hands of the Federalist party. But with only a
flimsy pretext, the partisan nature of the impeachment became clear,
and Chase was acquitted in 1806. It's comforting to remember the
politics of the United States has always been partisan. It
provides context to realize modern politics is, in many ways, no
worse, or better than the founding era.
But these solutions to the
Supreme Court, mentioned above, require a constitutional amendment.
In our current political atmosphere amendments are floated to
highlight a politician's ideological intelligence, rather than as a
solution. There is no chance an amendment targeting the Court
succeeds or ever receives a vote.
There is a simpler
solution. The problem with the Supreme Court isn't that it keeps
making unpopular decisions which aggravate citizens. It's that the
decisions are made by a 5-4 split, highlighting the divisive nature
of the Court and the country.
The solution? Have a
court with an even number of Justices, eight or ten, and require all
cases to have be delivered by a majority: 5-3 or 6-4. Any case which
ends in a tie upholds the lower court's decision.
Wait, will say someone.
This weakens the federal court. This allows states to pass a variety
of laws which differ from others. This prevents any body
of government from conclusively closing off debate. Excellent!
Let's
examine how disposing (not that this new court will erase the
precedence of prior decisions), previous 5-4 decisions would have
altered the past.
Roe v. Wade (7-2), Brown v. Board of Education (9-0),
Plessy v. Ferguson (7-1), Dred Scott v. Sandford (7-2), and Korematsu
v. United States (6-3) would all stand. A mix of some of the most
abominable and heroic decisions would stand, because they were
decided by a decisive majority.
But
critics of my proposal, from both sides, can find a number of
decisions which would have been changed by a court with an even
number of justices. District
of Columbia v. Heller
which loosened gun laws in 2008, Citizens
United v. Federal Election Commission
which opened the corrupting flow of money into elections, Obergefell
v. Hodges which
legalized gay marriage in the United States, National
Federation of Independent Business v. Sebelius
which upheld the individualized mandate of the Affordable Care Act,
and the atrocious Bush v.
Gore which stopped the
recount of the 2000 election in Florida.
In
the 1803, Chief Justice John Marshall aggregated to the Supreme Court
the power to declare which laws were in accordance with the
Constitution. It was part of his plan to cement the Federalist
conception of National power, but President Jefferson criticized the
decision saying,
"You
seem to consider the judges as the ultimate arbiters of all
constitutional questions; a very dangerous doctrine indeed, and one
which would place us under the despotism of an oligarchy. Our judges
are as honest as other men, and not more so. They have, with others,
the same passions for party, for power, and the privilege of their
corps.... Their power [is] the more dangerous as they are in office
for life, and not responsible, as the other functionaries are, to the
elective control. The Constitution has erected no such single
tribunal, knowing that to whatever hands confided, with the
corruptions of time and party, its members would become despots. It
has more wisely made all the departments co-equal and co-sovereign
within themselves."
It's
hard to agree with Jefferson's hyperbolic critique entirely, but he's
right. Justices shouldn't be the supreme authority of all political
and social conflict. Their ability to restrict all future
legislation through precedent is unequaled. Yet, they are needed to
protect minorities and the underprivileged though their decisions may
be unpopular.
It
would be terrible if the Supreme Court became a tool of a political
party, horrendous if they were just a rubber stamp of the majority
will, and unacceptable if they are too lofty, beyond the experience
of the common citizen. They need to be protected from the
disapproval of the public, the influence of money, and Congress. But
they also need to be protected from themselves.
Their
divisive 5-4 opinions have weakened their prestige and power. If
they can only decide cases in such a manner, they should fail to set
precedence. That is why an even membered court is preferable. And
unlike the plans to set term limits or elections, this plan doesn't
need a constitutional amendment. The Constitution sets no number of
Justices for the Supreme Court. Congress decides the number, which
has at different times been six, seven, nine, and ten. It has been
set at nine ever since 1869.
An
even numbered Supreme Court would be easy to create, reduce the
perception of division in the Judiciary, and while still able to set
influence politics, protect minorities, and set precedents, be
limited by consensus.
The
Supreme Court should be supreme, but require a wider
margin of agreement to enforce its eminence.
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