October 3, 2016

"Every branch of the government could stand an 11% shrinking."

Said MadisonMan, commenting on my post expressing skepticism about the notion that the Supreme Court is "short-handed" when it has only 8 Justices instead of 9.

If the problem is that an odd number is so much better than an even number, why not 7?

I like this comment too, from Humperdink:
"Shorthanded" is a classic hockey term. One team is down a player, which results in the opposing team having a man (or woman) advantage, appropriately named a "power play". When the shorthanded time frame ends, both teams are at "even strength".

With the Supreme Court, I would prefer the even strength situation, as opposed to a power play. Maybe we would get less highly partisan rulings. Let the lower courts have their fun.
Once you visualize the Supreme Court as 2 teams playing against each other competitively, then it's the odd number that is the problem. The liberals have been playing short-handed for — what? — a quarter century? I'm counting from the year Clarence Thomas replaced Thurgood Marshall.

By the way:
The new Smithsonian National Museum of African-American History and Culture treats conservative Supreme Court Justice Clarence Thomas like a mere footnote while heralding the woman who accused him of sexual harassment, Anita Hill....
Ah, yes. 1991, the year America got its consciousness raised on the subject of sexual harassment awareness. 7 years later, we got our consciousness lowered.

ADDED: The special ice hockey meaning of "short-handed" goes back only to 1939, according to the unlinkable Oxford English Dictionary. The oldest meaning of the word is "Niggardly, mean; inefficient, ineffective," as in "My Hostesse was not short, either handed, or witted" (1622). Second-oldest is how I think of the word: "Lacking a full complement of ‘hands’, undermanned, understaffed."

And I want to say that I think it would be terrible for the Court to have a locked-in 5-Justice liberal or conservative majority. What we have had for the last 2 or 3 decades has been 2 minority factions with 1 or 2 swing voters. Now, these swing voters — O'Connor and Kennedy — could be characterized as conservative. They were, of course, appointed by a conservative President, Ronald Reagan. But conservative Presidents don't necessarily produce conservative Justices. Justice Souter showed that very well.

It has been tiresome dealing with 5-4 decisions determined by a swing voter, what with the absurd attention to how Justice Kennedy thinks about things. Much as I would like to move beyond this era of Supreme Court decision-making, I don't like the idea of a predictable 5-person majority on either the conservative or the liberal side.

I would not mind staying with an 8-person Court, where majorities require the 2 sides to find ways to come together and produce some legal thinking that would feel more like law and less like politics.

68 comments:

gspencer said...

The USSC started off with 6, an even number,

"The Judiciary Act of 1789 is passed by Congress and signed by President George Washington, establishing the Supreme Court of the United States as a tribunal made up of six justices who were to serve on the court until death or retirement. That day, President Washington nominated John Jay to preside as chief justice, and John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson to be associate justices. On September 26, all six appointments were confirmed by the U.S. Senate."

http://www.history.com/this-day-in-history/the-first-supreme-court

Sebastian said...

"The liberals have been playing short-handed for — what? — a quarter century?" Yeah, that explains the ACA and SSM cases.

PB said...

I kind of like an evenly split court. It certainly quells the partisan talk. Though, even-splits along party lines don't always work out that well, when it disenfranchises people not in those two parties, ie the presidential debate commission certainly boxed out 3rd party candidates by insisting on 15% poll standing.

What the debate commission is the training of moderators to ask questions, regulate the time for each candidate and STFU.

Ignorance is Bliss said...

Conservatives have been playing short-handed since FDR.

David Begley said...

Maybe the fact checkers should go talk to the Smithsonian. Liberals have no shame. Orwellian rewriting of history.

CWJ said...

"The liberals have been playing short-handed for — what? — a quarter century? I'm counting from the year Clarence Thomas replaced Thurgood Marshall."

At best this has slowed, not thwarted, their agenda. Could you imagine the breakneck speed at which the "liberal" cause would have advanced had the numbers been reversed?

Brando said...

Theoretically, couldn't the Supreme Court consist of just one justice?

Bay Area Guy said...

The Left is all about power, or, more precisely, taking power from those who are perceived to have it. See Saul Alinsky 101A.

An even-numbered Court is no good if it deprives the Left of power. Darn it, we can't repeal Citizens United, without a 5-4 Majority!

If one understands this, it starts to make sense. The Left is only interested in the Law, to the extent that roughly half the time it provides a path towards obtaining power.

Once written, twice... said...

Clarence Thomas, who is barely present anyways, should be removed from the court so that it is an odd number. Hillary would then have two appointments next year bring it back up to nine.

Problem solved.

traditionalguy said...

It's time for the first transideolgy Justice. All of this originalist stuff is a cover for following the law.

I nominate Scott Adams. At least he can draw cartoons to add to his opinions

Henry said...

Bay Area Guy wrote: An even-numbered Court is no good if it deprives the Left of power. Darn it, we can't repeal Citizens United, without a 5-4 Majority!

Once written, twice... wrote Clarence Thomas, who is barely present anyways, should be removed from the court so that it is an odd number. Hillary would then have two appointments next year bring it back up to nine.

Claim made. Evidence provided.

rehajm said...

Implementing percentage based, across the board cuts is a horrible way to reduce a budget. Better to work through a combination of targeted reduction in inefficiencies and eliminating agencies lowest on a prioritized list.

PB said...

The Federal government could stand a much greater haircut.

Mac McConnell said...

The architect of the new Black History museum should be lynched for extreme bad taste. I can't tell if it's supposed to be a modern rendition of a Masai hut or a cotton gin. The museum seems to celebrate mostly past minstrel shows from Lincoln to present, I think BET must be it's curator. Am I an expert in bad taste or what?

"And if all others accepted the lie which the Party imposed—if all records told the same tale—then the lie passed into history and became truth. 'Who controls the past' ran the Party slogan, 'controls the future: who controls the present controls the past.”
― George Orwell, 1984

Eric the Fruit Bat said...

It's always a special treat when your team has the one-man advantage and then loses, anyway.

Once written, twice... said...

I am surprised that the prostitute that Scalia died in bed with has not done some interviews yet. I guess they are keeping him under wraps until after the election.

MadisonMan said...

Implementing percentage based, across the board cuts is a horrible way to reduce a budget

Why?

Tell the Department of Education they have 11% less money to work with. Have the Managers figure out what is most important to fund. Your bottom-up approach should result in the same thing.

The difficulty is sticking to one's guns in the face of lots of sob stories about how this will affect people and the resultant public pressure. "We don't have the money for it. If you are advocating personally to pay more in taxes, I'll take that into consideration -- but the Government has historically been inefficient in the extreme in managing the money it collects" Repeat as needed.

EMD said...

Better to work through a combination of targeted reduction in inefficiencies and eliminating agencies lowest on a prioritized list.

Good luck with that.

HoodlumDoodlum said...

The new Smithsonian National Museum of African-American History and Culture treats conservative Supreme Court Justice Clarence Thomas like a mere footnote while heralding the woman who accused him of sexual harassment, Anita Hill

Of course it does. Your tax dollars at work! Money is taken from you to advance this POV.

Hey, remember last week when the topic was an ugly mural a university allowed in a dorm and your position was that the government was expressing a viewpoint by that action (encouraging or allowing the mural), Professor? You were supportive of a student who (anonymously) filed a complaint with some sort of "hate response" board and seemed to say that was an appropriate response. Ok, so what's the appropriate response to this--to the Smithsonian's pushing an ideological and political viewpoint? Re: the school you said "they should take seriously how they actually make people feel." Well I'm an actual person and the way the Left, Media, and "impartial Goverment" treats Justice Thomas (and, in fact, the non-Left in general) pisses me off. Do you think anyone "takes [that] seriously?"

HoodlumDoodlum said...

CWJ said...At best this has slowed, not thwarted, their agenda. Could you imagine the breakneck speed at which the "liberal" cause would have advanced had the numbers been reversed?

For those of you without imagination just wait a few years; Hillary'll straighten this out--her Justices will get it done.

Brando said...

"The difficulty is sticking to one's guns in the face of lots of sob stories about how this will affect people and the resultant public pressure. "We don't have the money for it. If you are advocating personally to pay more in taxes, I'll take that into consideration -- but the Government has historically been inefficient in the extreme in managing the money it collects" Repeat as needed."

It's more than just sob stories--the problem is where you're cutting can come back and bit you in the ass. Let's say those cuts mean getting rid of claims examiners for Center for Medicare Services, so now we have fewer people examining claims for overpayments or fraud. The money we "save" on those salaries could mean spending a lot more on overpayments that aren't caught.

The fault isn't the agencies--the agencies are doing what Congress and the President command them to do. Blame Congress for making stupid laws that give the agencies missions that are counterproductive, or the big goodies they want to hand out to their constituents. The bulk of the federal budget is not agency operations--it's transfer payments to individuals. That's what needs to be addressed.

Brando said...

"Good luck with that."

We're all pipe dreaming here. In our imagined world, we actually cut the size of government and make it more limited and more efficient at its limited powers. But that's not the real world. In the real world, we're going to test the limits of our government's borrowing power because everyone wants more than they're willing to pay for.

MadisonMan said...

The problem at its base is that people who manage Government bureaucracies typically aren't good Managers (expecially is they're political appointees), and there is little knowledge of the big picture.

Matthew Sablan said...

"Better to work through a combination of targeted reduction in inefficiencies and eliminating agencies lowest on a prioritized list."

-- Ideally, yes. But no one will pull a trigger where they're responsible for what gets cut in Washington.

rehajm said...

Implementing percentage based, across the board cuts is a horrible way to reduce a budget

Why?


It assumes every existing department and agency is worthy of existing, albeit with a lower budget. It makes the dangerous assumption every department and agency is inefficient and/or can continue to function productively within the parameters of the funding reduction. It lessens the importance or eliminates the need for the valuable exercise of listing and ranking of priorities. It promotes dysfunction everywhere.

Mac McConnell said...

Tell the Department of Education they have 100% less money to work with. They've had 37 years as of Oct. 17th to improve education in the USA, they have failed.

rehajm said...

-- Ideally, yes. But no one will pull a trigger where they're responsible for what gets cut in Washington.

Agreed, but in that environment you're not getting an across the board cut either.

Brando said...

The bigger problem with government agencies isn't so much what they're spending but what they're doing--i.e., their regulatory missions. And that lands squarely on the Congress that gave them those powers, and the Presidents that directed them in carrying them out.

It's sort of rich seeing congressmen rail on about these agencies, and do nothing to fundamentally reform how they go about their business. Because when push comes to shove, they either don't know what these agencies actually do or they're too afraid of targeted constituencies that want things the way they are.

We'll know they're serious about budgets though once they actually tackle SS and Medicare. Short of that, it's just dancing around the elephant in the room.

320Busdriver said...

If being shorthanded by one allows for sensible decisions like the one just delivered rejecting lawless petitions from weoponized DA's like John Chisholm of Milwaukee, who led the unconstitutional witch hunt of WI conservatives then lets continue as is.

Thank you SCOTUS!

holdfast said...

"The liberals have been playing short-handed for — what? — a quarter century? I'm counting from the year Clarence Thomas replaced Thurgood Marshall."

I guess this would be true if you saw Kennedy as a conservative. If we're going to maintain the hockey analogy, I'd say he's more like the Ref. Or if we want to go to baseball, a switch hitter.

CWJ said...

Henry wins the thread with assists from "Bay..." and "Once..."

Close it doen and on to the next post.

Ignorance is Bliss said...

Every branch of the government could stand an 11% shrinking.

Do women know about shrinkage?

Lucien said...

If it only takes 4 justices to grant cert., why can't they grant it in cases where they like the Circuit Court's ruling, and then protect/enshrine those rulings via 4-4 outcomes in the Supreme Court? If there were "liberal" or "conservative" blocks acting politically, they could game the system given the current rules.

Matthew Sablan said...

"If it only takes 4 justices to grant cert., why can't they grant it in cases where they like the Circuit Court's ruling, and then protect/enshrine those rulings via 4-4 outcomes in the Supreme Court?"

-- It's a waste of the court's limited time to hear a case that they already agree on the outcome. By rejecting re-hearing, they're essentially doing the same thing. At least, from my not-a-lawyer view.

Ignorance is Bliss said...

Lucien said...

...why can't they grant it in cases where they like the Circuit Court's ruling, and then protect/enshrine those rulings via 4-4 outcomes in the Supreme Court?

A 4-4 ruling does not overturn the lower court, but it does not set a precedent for other circuits.

Ignorance is Bliss said...

Brando said...

We're all pipe dreaming here.

Gary Johnson has been taking the phrase pipe-dreaming a little too literally.

Xmas said...

As we learned in the 90's, joking about your penis with subordinates is much more harmful than actually sticking your penis in one.

Henry said...

"Every branch of the government could stand an 11% shrinking."

Clearly this calls for a short-fingered man.

Henry said...

@CWJ -- Thanks. I always like it when adjacent comments inadvertently play-off each other.

Todd Galle said...

Well, my branch of state government has been reduced by around 50%, making vacations almost impossible, or if taken, resulting in staff resentment due to the manpower shortage.

CWJ said...

Rats Henry, now you've done it! I was going to delete my comment and repost it after fixing my typo. But if I do that, our comments will be out of order. I guess I will have to live with my touchpad typing shame.

CStanley said...

I like the idea of an even number since the court has become so politicized. Let the lower court rulings stand unless one half of the court can convince at least one person on the other side to vote with them.

Replacing the justices who die or retire at the wrong time would be problematic though.

tcrosse said...

The Supreme Court is short-handed to the extent that it does not reliably deliver the desired decisions. Period. A five member court of liberal justices would be perfectly fine with the NYT.
BTW, P J O'Rourke, when he was still funny, said that the three co-equal branches of the federal government were Money, Television, and Bullshit.

BDNYC said...

4 liberals, 3 conservatives, 1 guy who . This is not an evenly balanced Court. In a politicized case, we either get 5-3 (liberal majority) or a 4-4 split (no decision, lower court ruling stands). Basically whenever Kennedy favors a liberal outcome, he gets to author the opinion to much fanfare. If he favors a conservative outcome, there is no outcome.

BDNYC said...

* 1 guy who decides

HoodlumDoodlum said...

Ann Althouse said...And I want to say that I think it would be terrible for the Court to have a locked-in 5-Justice liberal or conservative majority.

Would be? Will be. With the Justices Hillary Clinton will appoint the locked-in liberal Court majority will be "stronger together."
Has candidate Clinton said or done ANYTHING to make one doubt that she sees the Court in anything other than results-based terms? I can't imagine her making a case for the Court to stay "above politics," can anyone else? Anyway once she wins locked-in is what you'll get. Love wins!

mockturtle said...

Again, misleading headline. Instead of a discussion on federal budget reduction, it is merely an extension of an existing thread on SCOTUS' short-handedness.

BTW, 'across-the-board' is a bad way to cut the budget. It implies that all departments are equally important when many could clearly be eliminated altogether.

Rick said...

produce some legal thinking that would feel more like law and less like politics.

If this were your goal I'd think it far more likely to be reached with 8 "conservative" justices. Balancing the sides makes everything about politics, and all left wing judges means rules based on victim hierarchy (also politics).



Roughcoat said...
This comment has been removed by the author.
Roughcoat said...

The problem is not who/which side has too much power in the Supreme Court, rather it is that the Supreme Court has too much power. I mean, it is too prominent in deciding important issues. Increasingly it has been left to 9 justices to decide matters of great importance to the nation -- matters that should be decided by the legislative and executive branches. I know this is not in any way an original observation. But I think it bears mentioning.

HoodlumDoodlum said...

Roughcoat said...The problem is not who/which side has too much power in the Supreme Court, rather it is that the Supreme Court has too much power.

Those two things aren't mutually exclusive, Roughcoat. It can be true that the Court has too much power AND one "side" has too much power in the Court.

AReasonableMan said...

Roughcoat said...
The problem is not who/which side has too much power in the Supreme Court, rather it is that the Supreme Court has too much power. I mean, it is too prominent in deciding important issues.


The simple solution, espoused by many, is to greatly expand the number of judges so that the decisions do not rely on the idiosyncrasies of such a small number of people. Similarly, the death of one member would not be as decisive in changing the direction of the court as it is currently. That plus age limits would solve some problems. Currently the court is remarkably unrepresentative of the US population, no protestants.

HoodlumDoodlum said...

AReasonableMan said... Currently the court is remarkably unrepresentative of the US population, no protestants.

Why in the world would one want the Court to be "representative of the US population" w/r/t things like personal religious belief? The only reason I can think of is a base-level "hey, that person's like me!" recognition that might lend the institution some democratic legitimacy by idiots...but we're all much smarter and sophisticated than that, right ARM?

Should the Court be made up of representatives from every personal-identification group & subgroup in proportion to that group's population--sort of an index fund of demographic groups? I mean, should they still all be trained lawyers, then?

Geez, Leftist identity politics sure does look silly if you take it to its logical conclusion.

readering said...

Supreme Court too much power? The hot button decisions for both sides lately have been the Court invalidating statutes and executive decisions.

readering said...

People talk as if all 5-4 decisions had the same breakdown. In fact there are all kinds of combinations, because these smart judges have their own views. We miss out on some of these smart views with an 8 or 7 person court. And of course, this is no way to run a railroad, Senate Republican leadership.

David said...

"I would not mind staying with an 8-person Court, where majorities require the 2 sides to find ways to come together and produce some legal thinking that would feel more like law and less like politics."

Not a bad idea, except that eventually the two sides will not be in balance. Eight Justices could also produce a false appearance of consensus, based on the fact that a 5-3 vote is required for a majority. The real problem is that the Court is a extremely narrow sampling of the nation, no matter how many justices there are. Now that the court has been ceded so much power by the legislature and the public, an activist court is going to roil politics whether liberal or conservative.

That is why Roberts' emphasis on restraint is a valuable idea. But it is not a valuable technique when only one Justice is exercising restraint.

EMD said...

The simple solution, espoused by many, is to greatly expand the number of judges so that the decisions do not rely on the idiosyncrasies of such a small number of people. Similarly, the death of one member would not be as decisive in changing the direction of the court as it is currently. That plus age limits would solve some problems. Currently the court is remarkably unrepresentative of the US population, no protestants.

I'm thinking somewhere in the neighborhood of 535.

AReasonableMan said...

HoodlumDoodlum said...
sort of an index fund of demographic groups?


A majority protestant nation has apparently decided to short protestants on the court.

EMD said...

I can't believe you are fat-shaming the government. How dare you!

mockturtle said...

Per EMD: I can't believe you are fat-shaming the government. How dare you!


Good one! Talk about morbid obesity!

Stephen said...

The problem with this take, Professor Althouse, is that it just shifts the question of who has the narrow majority to the lower courts. Without the discipline of a S. Ct. where a majority can establish a uniform rule, you'll get one (probably liberal) rule in the Ninth Circuit and one (probably conservative) in the Fourth (to name only two examples) essentially forever. It's already happening now. So maybe your solution leads to more politicization...

Bob Ellison said...

Couldn't we do it like the cobbler in that old folk tale? When the justices go to bed at night (third floor, right?), a bunch of elves, maybe 20 or so, sneak in and finish all the Court's work.

johns said...

The Court is going to continue to express its opinion on important matters. I don't see any of the ideas put forward here changing that. But many of the Court's decisions could be reversed by legislation, e.g. Obamacare. If all three branches of government were functioning as designed--administrative obeying the law, legislative making laws where needed, and judicial interpreting the laws as written--it would be a big improvement. But as long as Congress is deadlocked, SCOTUS has too much power.

buwaya said...

Its not a matter of a deadlocked Congress.
The basic problem is that the stakes are too high, the executive agencies have far too much power, and they have become their own branch of government.
And they can't be reformed because they have accumulated wealthy and powerful clients in extra-government interests, i.e., corporatism.
Congress simply hasn't got the will or the power to reform this, even with a willing executive.
The last barrier to unchecked power in the hands of the actual mechanism of government, a la the EU, is the Supreme Court.

Kylos said...

Prof. Scott Adams brought up the idea of an even number of justices when Scalia died and you
commented on it then.

Ann Althouse said...

Thanks, Kylos. I'd forgotten about that. Interesting to see how much I agree with myself when I'm not checking.

Harold said...

ADDED: The special ice hockey meaning of "short-handed" goes back only to 1939, according to the unlinkable Oxford English Dictionary. The oldest meaning of the word is "Niggardly, mean; inefficient, ineffective,"

You wrote something that sounded like the "N" word, you racist.

(Do I need to use the sarcasm tag?)

TennLion said...

Meh. I'm afraid that an even number would not result in a clear statement of the law that all could understand, but rather a series of compromises resulting in 16-part balancing tests and clear-as-mud rulings resulting in unknowable guidance. (See, e.g., Ten Commandant monument rulings.)