October 3, 2016

Is the Supreme Court "short-handed" when it has 8 Justices and not 9?

"Short-handed" seems to be the Word of the Day as the Supreme Court begins its new term.

The Washington Post has "Supreme Court to begin new term short-handed as its ideological balance hinges on fall vote."

NPR begins its discussion of the new Supreme Court term with "It's been nearly eight months since Supreme Court Justice Antonin Scalia died unexpectedly, leaving the nation's highest court short-handed...."

The McClatchy headline is "What’s a shorthanded Supreme Court likely to do in its new term? Maybe nothing." (Nothing is better than all those things that are worse than nothing.) UPI: "Supreme Court begins term Monday shorthanded, future hinging on presidential election."

"Short-handed" implies that there is an amount of work to be distributed to members of a team, and that each person will have more work to do if there are fewer members of the team. But does the Supreme Court work like that? Each case is decided by a vote of the group. An odd number of Justices is more likely to produce a clear precedent. It's not certain, because the odd number can become even if someone recuses himself or herself. And the majorities often get together to decide the case on some minimalist, technical, or fuzzily stated ground. But the Supreme Court gets its work done whether the team consists of 9 or 8 or 7 or 6. The original number of Supreme Court Justices was 6 — an even number. And when Franklin Roosevelt offered to raise the number as high as 15, the extra help with the work was seen as an attack on the Court.

Yes, an individual Justice has the task of drafting the opinion (with the help of 4 law clerks), but the opinions have gotten longer and longer over the years, to the point where few people can tolerate reading much of the text. There's no sign that more hands are needed in the work of the Court.

There's just an open slot, and it has become a central issue in the presidential campaign. Those who want the balance on the Court to tip liberal would have liked for President Obama to have had the appointment, but the constitutional check that is Senate confirmation presented an obstacle, and the people couldn't be roused to put enough pressure on the Senate to move Obama's nomination forward. It will have to be the election that will determine which way the Court will tip. That is indeed harrowing, but not because the Court must slog on "short-handed."

The NYT avoided the buzzword of the day. It chose a more dramatic word — "crippled":  "A Crippled Supreme Court’s New Term." The text supports that drama. The editorial begins:
This is American politics in 2016: the normalization of the deeply abnormal, the collapse of customs of behavior and respect, and the creation of an environment so toxic and polarized that the nation’s leaders struggle to carry out the most basic tasks of government.
We're told that the failure to let Obama replace Scalia is "entirely contrary to the workings of a constitutional government, and it is inflicting damage on the court and the country." But what damage? 
Meanwhile, the eight justices have split evenly in several major cases, which puts off any final judgment on lawsuits that affect millions of Americans. 
The cases are still decided and the lawsuits come to an end. A split merely leaves the result in the court below where it was. By "final judgment" — which normally refers to the conclusion of the dispute between the parties to one lawsuit — the NYT seems to mean that we don't get a usable statement of the law to be applied in other cases.
The inability to issue precedent-setting rulings appears to have led the justices to grant review on fewer new cases than usual....
If the problem is a dearth of precedent-setting rulings, that explains why people have accepted waiting for the results of the election. Let us decide which way we want those precedents to go. Plenty of people would rather let President Obama nail it down: Go liberal! But the "workings of a constitutional government" — the Senate's confirmation power — have blocked that easy path to a liberal majority.

Despite the dramatic posturing of the New York Times, the nation has absorbed the question of which way the Court should go into our presidential election. There's nothing "deeply abnormal" or even shallowly abnormal about that. The people will decide.

22 comments:

MadisonMan said...

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

Hagar said...

It is "mysterious" that they all simultaneously come up with the same wording?

Make it a rule that the justice writing an opinion must submit it in his own handwriting.

Humperdink said...

"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.

Ignorance is Bliss said...

[T]he workings of a constitutional government is precisely what the liberal half of the court is trying to put an end to, one constitutionally baseless decision at a time.

Sebastian said...

"The people will decide." No. Tony will. And the "constitution" has nothing to do with it. Not anymore.

JAORE said...

Never let a manufactured crisis go to waste.

James Pawlak said...

The Constitution has been attacked unworthy of study and use by at least one Federal judge on a circuit court of appeals. It appears that such tyrants: Wish to complete the power of judges over the People by the final authority to amend the Constitution without going through its own, democratic, amendment process; And, have forgotten President Jefferson's prescription for dealing with tyrants.

campy said...

And, have forgotten President Jefferson's prescription for dealing with tyrants.

As if some dead white male slaveowner has anything of value to say.

Brando said...

We may have reached a point where no one will be appointed to the Supreme Court unless the president's party also controls the Senate. Can anyone picture the opposition party approving any president's appointment?

And forget the filibuster for any judicial appointments. That's history.

robother said...

"Its not the length of the hand, but what you do with it." Learned Hand.

rhhardin said...

Forehanded is forearmed.

Nigel Tufnel said...

They were crippled back in May too, according to the NYT. http://www.nytimes.com/2016/05/17/opinion/the-crippled-supreme-court.html?_r=0

Somebody at NYT likes that word enough to rehash the old editorial.

Crippled then and still crippled five months later!

Crimminy! Won't someone help these cripples?

buwaya puti said...

I note that the Senate has managed to avoid voting on a replacement. Back when Scalua died this was held to be unthinkable, a sure election-loser for the Republican Senate, and etc.
Here we are, Oct.2 with no replacement and its in no way an election issue. Well, who gets to appoint the replacement is an issue, but Obamas at least seems irrelevant.

Left Bank of the Charles said...

President Obama will get the opportunity to make a recess appointment at the end of the year. That seems likely if Trump wins or Republicans retain control of the Senate.

Wilbur said...

"As if some dead white male slaveowner has anything of value to say."

As if you have ANYTHING to say of more value than anything Thomas Jefferson might have said. This has to be one of the most ignorant comments on this blog for which I am not responsible.

buwaya puti said...

Wilbur, is sarcasm comrade.

JAORE said...

Should that not read that the Supreme Court is now "other-abled"?

For shame NYT and your minions, for shame.

MadisonMan said...

That seems likely if Trump wins or Republicans retain control of the Senate.

About the same time that he pardons Hillary ;)

mccullough said...

You only need 9 at a time for baseball.

Wilbur said...

Thank you, buwaya. Slipped right past me.

JaimeRoberto said...

There's no numerical definition for the Supreme Court in the Constitution as far as I can tell, but since it was written over 50 years ago, I really don't know.

Jonathan Graehl said...

spain hasn't elected a government in 10 months and people seem happy with no new lawmaking ...