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And Then There Were Eight

By Daniel J. Hemel

The Senate Judiciary Committee’s vetting of Samuel A. Alito Jr. left many key questions about the newest Supreme Court member’s judicial philosophy unanswered—and it left one key question about Alito’s new position unasked: do we even need a ninth justice?

Constitutionally, the answer is no. Article III calls for the creation of “one supreme Court,” but it says nothing about the number of justices. That’s left for Congress to decide. And there may be a strong case for keeping the court’s size at an even number.

The idea of having an even number of justices on the Supreme Court is not a new one. In fact, the Judiciary Act of 1789, which first set up the federal judicial system, established a six-person Supreme Court. And in its early years, the Republic clung to the even-number status quo. The lame-duck Federalist majority in Congress voted in early 1801 to reduce the court to five members. But when the Jeffersonians gained control, they repealed the Federalists’ move and kept the court at its six-man size.

As the nation grew, though, so did the number of justices—reaching a peak of 10 during Abraham Lincoln’s first term. It wasn’t until 1869 that Congress set the Supreme Court to its current size of nine members.

In retrospect, that might have been a mistake.

Many of the court’s most controversial rulings have come on 5-4 votes. It’s possible that these votes were so close because the issues at stake were so contentious. But it’s also possible that 5-4 votes lack the imprimatur of authority that wider margins carry. As the current chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa, said after the court issued a 5-4 ruling in the 2000 case Bush v. Gore: “it naturally raises cynicism when you have so many 5-4 decisions.”

The history of the court in the 20th century is replete with instances of high-stakes cases decided by 5-4 margins. Perhaps the most infamous example is the 1905 case Lochner v. New York, in which a five-justice majority struck down a New York State law capping the number of hours that bakers could work. More than three decades later, when the Supreme Court nullified part of the New Deal legislation in the 1936 case of United States v. Butler, it did so on a 5-4 vote as well. Many of Rehnquist Court’s rulings that invalidated federal laws also passed by 5-4 margins, including the 1995 decision in United States v. Lopez that struck down the popular Gun-Free School Zones Act.

But if the court only had eight members, these razor-thin rulings would be a thing of the past. A 5-3 ruling might be more resounding—and potentially less divisive—than a single-vote margin. Alternately, a 4-4 tie would send the case back to lower courts—either to the states or the federal circuits.

Would those 4-4 ties cripple the judicial system? They might have the opposite effect. Different jurisdictions could experiment with their own approaches to complicated legal issues. They would be “laboratories of justice,” to borrow University of Wisconsin law professor Ann Althouse’s phrase—a phrase derived from Justice Louis Brandeis’ remark that decentralizing government could make the states into “laboratories of democracy.” And as these “laboratories” yield experimental results, their findings might help the Supreme Court justices formulate a more carefully-considered ruling if the once-tied cases ever returned to their docket.

In the current climate, 5-4 decisions establish binding precedents—precedents that may then be reversed if one swing justice leaves the bench. For example, Alito’s ascension to the spot formerly held by Justice Sandra Day O’Connor could conceivably lead to the reversal of 5-4 precedents on affirmative action, campaign finance laws, and partial birth abortion. With eight members, the court would need a two-vote margin to establish a new precedent or overrule an existing one. By lowering the likelihood that one new justice would cause the court to reverse its precedents, an eight-member bench might increase the overall stability of the judicial system.

Senate Democrats tried to make the Alito confirmation vote into a battle about ideology, and they lost. They might have been better off framing the question in institutional terms. The question is not whether Alito should be the ninth justice. It’s whether there should be a ninth justice at all.

But the argument for an even number of justices could be a double-edged sword in the Democrats’ hands. Now that the Alito confirmation is a done deal, why not let President Bush appoint a tenth justice to the high court? Democrats would shudder at the prospect. So the case for an even number of justices might be sound in theory, but in practice, it’s tinged with partisan motivations. As Senator Specter suggested, the nine-justice system “naturally raises cynicism”—but so does any effort to undo it.



Daniel J. Hemel ‘07 is a Social Studies concentrator in Lowell House and is one of two associate managing editors of The Crimson.

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