Althouse: "On Supreme Court nominations, I’d like to see the number of justices stay at eight, which I believe is legal under the Constitution."

April 7, 2016

"On Supreme Court nominations, I’d like to see the number of justices stay at eight, which I believe is legal under the Constitution."

"And then I’d like to see new justices appointed in a way that deadlocks the court for most issues at 4-4. That way their decisions would be more credible to the public because there is only a decision if one side (conservative or liberal) has a defector. In other words, I think the president should be working on making the court credible instead of working to make it biased."

Says Scott Adams.

He didn't really explain how you could keep 4 conservative and 4 liberal, which isn't a problem for me, because the answer is: There is no way. Also, there's an underappreciation of the importance of getting some things decided so we can have some resolution and move on. These are interconnected propositions because the conservatives — assuming we could get and keep 4 — would probably see more value in getting to a clear rule that people can rely on, so the conservatives would be more likely to "defect."

But: Interesting idea, Scott Adams. I get tired of the lawprofs-and-judges answers to these things. Enlarge the circle of who can speak to questions of how the Court should operate.

I like the idea that the Court already seems so political that people can't believe in it and it would build public confidence if the liberal and conservative factions have to agree to get to a decision. And I'll just ignore for the moment that no decision is a type of decision. It affects us.

48 comments:

Brando said...: Yeah, he seems to be missing the benefit of having a majority opinion for the purpose of setting precedent.

Also, the "liberal/conservative" divide may only really matter in the more contentious cases, but the Court rules on a lot of cases every year that are very important for various areas of law but do not break down easily over a "left/right" divide (say, IP cases).

I don't really see a better way to do things from the way we do them now--interested parties are always going to try and support or derail a nomination, and a candidate who is perfectly qualified to one side will be a disaster to another. And everyone loves cases that go the way they'd like, and hate the ones they don't. That can't really change.; 4/7/16, 2:57 PM
Lance said...: And then I’d like to see new justices appointed in a way that deadlocks the court for most issues at 4-4.

All this does is force all political decisions to be made in the lower courts, which are not bound by each others' precedents. To achieve Adams' end, you'd have to politically deadlock every district and appellate court, and probably the state supreme courts too.; 4/7/16, 2:59 PM
jimbino said...: The beauty of a court with Merrick B. Garland, is that we could have the "diversity" of 5 Roman Catholics and 4 Jews, all lawyers degreed at either Yale or Harvard, all wishy-washy humanities majors unschooled in STEM or advanced economics and all probably circumcised where possible.; 4/7/16, 3:07 PM
MadisonMan said...: 8 justices instead of 9 is also 11.1% cheaper as far as labor costs go.; 4/7/16, 3:08 PM
Todd said...: I don't care for the description of "liberal / conservative" and do not want justices selected on that "line". I would rather we focus on getting "originalists" and "constitutianlist" on. I would must prefer to hear a decision come down with the reason applied being "based on my understanding of the constitution..." instead of the "I feel..." or "in order to be fair...".; 4/7/16, 3:09 PM
Brando said...: "8 justices instead of 9 is also 11.1% cheaper as far as labor costs go."

Why not 3 justices?

"I don't care for the description of "liberal / conservative" and do not want justices selected on that "line". I would rather we focus on getting "originalists" and "constitutianlist" on. I would must prefer to hear a decision come down with the reason applied being "based on my understanding of the constitution..." instead of the "I feel..." or "in order to be fair..."."

I think that's what it really comes down to, with "conservatives" generally being the more "originalist" or "literalist" while "liberals" are more of the "living constitution" types. Though often both types of justices tend to stray from that and support whichever policy preferences they have, which justices shouldn't do.; 4/7/16, 3:13 PM
RC3 said...: The conservatives... would probably see more value in getting to a clear rule that people can rely on, so the conservatives would be more likely to "defect."

Until they figured out the clear rule people can rely on in an iterative game with pervasive non-adjudicated rules is all the written rules mean what was written: original meaning. They being John Roberts and Anthony Kennedy.; 4/7/16, 3:13 PM
buwaya said...: The only recourse against bureaucratic whim is, these days, always the Supreme Court. It comes down to the fact that the government is much too powerful for its own good when so much is so often at stake.
Its only going to get worse.
No messing with appointments is going to fix the fundamental problem.; 4/7/16, 3:14 PM
Mark said...: Sometimes making a decision is necessary.

I am bit surprised someone who worked within business advocates not making difficult decisions. He must have never visited the corner office.; 4/7/16, 3:15 PM
Larry J said...: Todd said...
I don't care for the description of "liberal / conservative" and do not want justices selected on that "line". I would rather we focus on getting "originalists" and "constitutianlist" on. I would must prefer to hear a decision come down with the reason applied being "based on my understanding of the constitution..." instead of the "I feel..." or "in order to be fair...".

So, you'd prefer people to look at what the Constitution actually says and what the people who wrote it meant instead of just pulling their reasoning out of their asses? So would I. As it is, the Constitution only means what a majority of supreme court justices say it means. I have no faith in the court.; 4/7/16, 3:26 PM
Bryan C said...: "All this does is force all political decisions to be made in the lower courts, which are not bound by each others' precedents. "

Why is that a problem?; 4/7/16, 3:27 PM
Beldar said...: Why don't you pick a random 7th grader to become infatuated with, Prof. Althouse? This cartoonist has cartoonish notions, unsurprisingly. You're taking him seriously, which is surprising.; 4/7/16, 3:29 PM
Fernandinande said...: Brando said...
Why not 3 justices?

Because then at most 33% of them will be wrong, which might cause regular people to take them seriously. With 9 of 'em, usually 44.4% of 'em are wrong on issues with political implications.; 4/7/16, 3:34 PM
Bay Area Guy said...: The problem isn't the number of Justices -- the problem is left-wing lawyers, who have no fidelity to the Constitution, its history nor its structure.

To them, it's an impediment to a glorious, utopian future. More rights, less responsibility!; 4/7/16, 3:35 PM
traditionalguy said...: A new approach would be less boring. Currently the best laid plans of mice and men and President's aiming to control Supreme Court quiddities oft go astray.

I like the idea that the each of 4 person Teams of Justices have to fight each case decision out ... but no choking like they do it in Wisconsin. And as a corollary, the referee can not be Reince Priebus.

This would make youth and military training the bigger evaluation points for appointees.

And of course televise it.; 4/7/16, 3:41 PM
Tom DeGisi said...: I am involved in NCFCA home school debate. This year our resolution is that the Federal Court system should be significantly reformed. I heard a case that required a 6-3 majority, or a minimum of 5 votes in favor if less thean 9 voted. Sounded like a good idea.; 4/7/16, 4:02 PM
HoodlumDoodlum said...: Ann Althouse said... These are interconnected propositions because the conservatives — assuming we could get and keep 4 — would probably see more value in getting to a clear rule that people can rely on, so the conservatives would be more likely to "defect."

Yes, spot on. The conservatives would also be made to feel pressure (Linda Greenhouse et al.) in a way the liberals never are--the conservatives will always cave first.; 4/7/16, 4:06 PM
AlbertAnonymous said...: The number of 5-4 decisions is actually pretty low from year to year. Last 10 years averaged about 22% of cases were 5-4 according to SCOTUSBLOG.; 4/7/16, 4:09 PM
rhhardin said...: Keep it at eight and give Justice Thomas two votes.; 4/7/16, 4:29 PM
rhhardin said...: There's no constitutional requirement for any specific number of justices.; 4/7/16, 4:29 PM
Leeatmg said...: Why not just require a unanimous decision?; 4/7/16, 4:37 PM
Lance said...: Why is that a problem?

The U.S. is meant to be a nation of laws. If every appellate court made up its own precedents, the U.S. would effectively be nine nations of laws, with all the accompanying confusion.; 4/7/16, 4:39 PM
buwaya said...: "The U.S. is meant to be a nation of laws. If every appellate court made up its own precedents, the U.S. would effectively be nine nations of laws, with all the accompanying confusion."

Confusing only to a point, and not necessarily a bad thing.
In many matters the US is 50+ (depending on how you count territories, commonwealths and DC) nations, plus any number of cities, counties and etc., each with local laws and regulations.
That more of "the law" devolves locally, perhaps it would be a good thing.; 4/7/16, 4:54 PM
Dude1394 said...: The court is completely political and I do not believe in it at all anymore. That we can create a tax for breathing just floors me. I can see Obama and a bunch of partisans doing it, but I cannot for the life of me see how a judge gets there.

I expect I will never trust the court again in my lifetime. If I could revolution, I would.; 4/7/16, 4:58 PM
Kevin said...: Do we really need to decide things for the entire country on a 5-4 vote? Why are we giving one person that power over us?

I have no problem with a 4-4 decision which lets the lower court's ruling stand. What's the worst that can happen, different laws in different parts of the country? I thought that was part of the deal when we decided the states were sovereign. I thought that was part of freedom and the ability of people to choose to live in areas which best met their needs.

But no, we need resolution! Right now. For everyone. For evermore.

Frankly, if you can't come up with at least a two-vote margin, it's likely not that clear of an issue in the first place. Perhaps doing nothing and gathering more experience over time could be considered a thoughtful approach rather than a malfunction of the court?; 4/7/16, 5:00 PM
Chuck said...: Professor Althouse, this is my breaking point with your uncritical entertainment of Scott Adams.

There is a reason why I don't comment about cartoons. It's the same reason Scott Adams should not be opining about the law and the federal judiciary.

Yeah, Scott Adams -- you cartoonist -- there is a law that prescribes the number of Supreme Court justices at one Chief Justice and eight associate justices. It is the Judiciary Act of 1869, the statutory heir to the Judiciary Act of 1789.

And it isn't a simple matter of one more or one less vote on cases that were granted cert. Each of the justices -- as Professor Althouse knows and could explain to all of you better than I -- is the presiding justice for one or more of the U.S. Circuit Courts of Appeal. (Hearing special matters, particular unusual writs, and other administrative -- but important -- matters.)

My patience with Scott Adams is gone. He's not offering interesting and unusual observations from outside of the mainstream. He's offering lazy, ill-informed, nihilistic garbage.; 4/7/16, 5:42 PM
Chuck said...: ...And I want to jump in here with an additional comment before anybody picks my nits.

To be sure, Scott Adams suggested that an 8-member Supreme Court of the United States would "be legal under the Constitution." Uh, okay. So stipulated; as every high school civics student knows, the Supreme Court is only briefly mentioned in the first sentence of Article III, and it simply talks about the judicial power of the United States being "vested in one Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish." No numbers are mentioned.

Congress, in the Judiciary Acts I have mentioned above, has "ordained and established" a lot of the detailed outline of the federal judiciary, of course. Circuit Courts of Appeal; District Courts, tribal courts, etc., etc. Bankruptcy courts, by the way, are technically Article I courts which is cool, but they too are tied into the Article III scheme.

So if Scott Adams wants to have a late night argument with his fellow college undergraduates in whatever dormitory he goes to, to get political ideas for his blog, that's okay. But in the real world, the nine justices of the Supreme Court are clearly and very definitely established under Article III, which delegates part of the details to Article I.; 4/7/16, 6:00 PM
buwaya said...: One mans "interesting and unusual observations from outside of the mainstream" is another mans "lazy, ill-informed, nihilistic garbage".

The usual division here depends on just how solid one imagines the reality of ones conceptual "box" to be. On social issues, as opposed to, say, physics, history says that the "box" tends to be pretty flimsy when put to the test.; 4/7/16, 6:04 PM
buwaya said...: In a society where it is, for some reason, now legal and acceptable for one man to marry another, and for the law to recognize a man as a woman and vice versa, the matter of how high courts should be organized seems like a rather trivial change.; 4/7/16, 6:10 PM
Etienne said...: This comment has been removed by the author.; 4/7/16, 6:21 PM
Ann Althouse said...: "Yeah, Scott Adams -- you cartoonist -- there is a law that prescribes the number of Supreme Court justices at one Chief Justice and eight associate justices. It is the Judiciary Act of 1869, the statutory heir to the Judiciary Act of 1789."

He's proposing a statutory change.; 4/7/16, 6:30 PM
holdfast said...: OF course, Adams' theory assumes that Kennedy is some sort of reliable conservative, which he is not. He's far more "open minded" than any of the four libs on the court.; 4/7/16, 7:18 PM
JackWayne said...: Inasmuch as the Court is not specifically granted the power to make their own rules like Congress, I believe Congress should demand super-majority votes on every issue. 6-3 in the case of 9 judges. It would force them to compromise.; 4/7/16, 7:19 PM
Anonymous said...: Right after the death of Antonin Scalia, I posted the same suggestion here, namely, the Court should be kept at 8 for as long as is politically expedient in order to minimize the harm the Court always tends to do when it addresses big social issues. I also suggested that at the bench's full strength all SCOTUS decisions needed to pass by 6-3 or even more affirmative votes in order to decide cases on appeal, on the grounds that the Court's too often politically motivated 5-4 decisions tended to resolve nothing but merely added more confusion to the tasks of the lower courts. If the highest court in the land cannot come to a clear consensus on a legal matter before it, it should either flip a coin (and let everyone know that's how it reached its decision) or just butt out and return that month's salary to the US Treasury.; 4/7/16, 7:58 PM
Beldar said...: Scott Adams isn't FDR.

"Is legal" is not the same as "would be legal if the law is changed." Nothing in the one paragraph about the SCOTUS gives any hint that Scott Adams has a clue that there is such a thing as a Judiciary Act, much less that he is proposing that it be amended. Regardless, his proposal for changing the size of the SCOTUS -- whether he's really is suggesting that we just ignore the current vacancy, and that the House and Senate amend the Judiciary Act, and Obama sign it, or not -- is ridiculously unserious.

Yes, he does have the virtue of having a fresh perspective on this subject, different from lawyers and judges and law students and their perspective. Adams' perspective, though, is uninformed and stupid, not interesting at all. It's based on a fundamental misunderstanding of how the Court has actually operated and how its Justices have been chosen and have aligned.

Our host decides what and who she thinks is blogworthy. Of course. But if she's interested in feedback, she has mine, re Adams, for whatever worth she gives that.; 4/7/16, 8:24 PM
damikesc said...: I've been saying that the SCOTUS has a very limited worldview and basically limiting justices to Ivy League grads isn't beneficial.; 4/7/16, 8:43 PM
Jane the Actuary said...: How long should the number of justices stay at 8? I don't know. But I did find it very encouraging that the justices went back to the Administration and the Sisters to, basically, ask them to try a little harder to compromise, in order to avoid a 4-4 deadlock. But it's very frustrating that there are indeed so many cases where there are 5-4 decisions, and not things that turn on an interpretation of obscure legal principles but on a partisan basis. That just shouldn't be the case, especially when it seems to become a "Separation of Powers" issue in which the President and the Senate battle over the ability to "control" the Supreme Court by means of appointing likeminded justices. (http://www.patheos.com/blogs/janetheactuary/2016/04/why-not-merrick-garland-separation-of-powers.html) It's particularly disturbing that, in cases where the administration is directly involved, Obama is aiming to position Garland to decide in his favor.; 4/7/16, 10:29 PM
Guildofcannonballs said...: "Enlarge the circle of who can speak to questions of how the Court should operate."

The single signal greatest of unsubversiveness historically, the 'classic' call for a bigger tent. Who is in the position to call for whom to become a part of this tent or circle or tribe or clan?

The creation of false "circles" of false "who[s]" that can "speak" to "questions" of "how" "the Court" "should" "operate" show a fundamental status of limiting unwanted input or accepting unwanted input is what is wanted Freudian-style. There are other options such as Willmoore Kendall's John Locke and the Doctrine of Majority Rule and Kirk, Russell's works.

https://en.wikipedia.org/wiki/Christopher_Langan

The idea Chris Langan couldn't understand all the made-up bullshit of the Leftist SCOTUS and entire justice apparatus is accurate, and a reason for anxiety among only those able to see the incestuous idiocy of stare decisis but simultaneously lack any grasp of its power; man's will to power and double that for women's of Ginsburg's stature.

NO WAY NO HOW anyone but Harvard or Yale gets on there, Ann Coulter will tell you that. Only the best of the best. The most meritorious of the meritorious only need apply, and they, EVEN THEY, mostly get turned downed.

So they rule. By God they fucking earned that shit, you don't even know. You don't have a clue. You literally can't comprehend what they defeated to get where they are.; 4/7/16, 11:00 PM
Static Ping said...: The problem is not the Supreme Court itself, though it certainly has been corrupted. The problem is that government in general and the federal government in particular have gotten too large and have too much power. If the Supreme Court only had to deal with obscure legal questions of no particular importance to most people, no one would particularly care about their judicial philosophy. For that matter, no one especially cares about corruption in the legislative and executive branches if the furthest extent of it is stuffing political supporters in cushy jobs and miscellaneous pork.

There is no system that humans have devised that cannot be corrupted. The best you can hope is the chosen system works less badly than the other choices. If you think a new system will solve everything, you don't really understand the problem. (Case and point, the Constitution has an assumption that Congress would be jealous of its power and if the Supreme Court started making laws, Congress would impeach and remove the justices and/or amendments would override the decisions. Today that sounds quaint.)

That said, having nine persons appointed for life making law in a supposedly democratic-republican country is an extremely bad idea.; 4/7/16, 11:06 PM
gadfly said...: Long term, it really doesn't matter if there are eight or nine justices. Over time the appointment of Supremes will bend to to the ideological leanings of the president and the concurring Senate. Two dimensional stick figures are simple to draw and understand and so too are protective ideologists, Mr. Adams.

More silliness from our creative storytellers: As another Adams, Douglas who wrote the 5 volume, "Hitchhiker's Trilogy" said:

He was a dreamer, a thinker, a speculative philosopher... or, as his wife would have it, an idiot.; 4/7/16, 11:14 PM
Ken Mitchell said...: The problem isn't that the Supreme Court isn't balanced; the problem is that government is too big, too powerful, and too intrusive. When I was a teenager (a VERY long time ago...) a common saying was "Don't make a Federal case of it." There are far too many cases of government imposing ill-considered "one size fits all" approach to life and society. Not every place needs to be exactly the same.

Government isn't supposed to be running - and ruining - everyones' lives.; 4/8/16, 1:09 AM
Unknown said...: I nominate Scott Adams for the next Supreme Court justice.; 4/8/16, 8:22 AM
Chuck said...: I think some of you are being too hard on government generally, and not nearly hard enough on certain liberal traditions in the Supreme Court in particular.

Let's just be really clear; when the US Supreme Court acts as a super-legislature to reverse the duly-enacted and broadly popular constitutional provisions of a majority of states on a recognized area of state sovereignty like the traditional definition of marriage, it is making itself an essentially political body.

It's bad substantive law. It's bad procedural law. It is offensive to the traditional and historical balance of powers between the branches of government and especially to our understanding of federalism. And same-sex marriage isn't the only area in which federal courts are attempting to govern the people. It is just one of the most glaring.

If the justices and defenders of the faith at the Supreme Court want to be treated less in the manner of political players, the best thing they can do is to stop making political pronouncements.; 4/8/16, 10:02 AM
Dan Hossley said...: I'd like the number reduced to 5. Let's get rid of Ginsberg, Breyer & Sotamayor.; 4/8/16, 10:13 AM
Sammy Finkelman said...: I think it would require a Constitutional amendment to require any Supreme Court decision to be decided by an at least 2-vote margin to matter, and I am not sure if that is the right thing to do, at least in all cases. Or could a rule like that be enacted by law?; 4/8/16, 1:43 PM
PeterJ said...: The number of Justices on the Supreme Court was set at 9 by legislation, back in 1789 I would assume. It can be changed by law! --is not part of the Constitution.

There was a tremendous fuss when FDR tried to increase that number in (I believe) 1936, he being irked that the "9 old men" were striking down New Deal legislation as unconstitutional. His effort failed, but may have affected the court to be a bit less hostile to his programs.

I think we need to be reminded that the "Supremes" are not "the Almighty". Roger Tawney must have thought he'd fixed those damn abolitionists in 1858 with his Dred Scott decision; I suppose the 1973 court thought they (the 5-4 majority) had made abortion rights part of the Constitution? Likewise with same-sex marriage last year (Kennedy & 4 of his colleagues). It took the Civil War to amend the Dred Scott decision-- tho other two? Well, I hope without civil war.

When the Supremes try to be the Almighty we can wait them out-- or, just treat the Court a bit less like His Holiness the Pope infallibly proclaiming a dogma "to be held by all the Faithful" as I think my catechism expressed it when I was in 5th grade.; 4/8/16, 1:51 PM
Gahrie said...: The number of Justices on the Supreme Court was set at 9 by legislation, back in 1789 I would assume

Nope..the original court had six justices. In 1807 they went to seven. In 1837 they went to nine, and briefly ten in 1863. In 1869 the number was set at nine again, and has remained there ever since.; 4/8/16, 10:44 PM
Gahrie said...: I think it would require a Constitutional amendment to require any Supreme Court decision to be decided by an at least 2-vote margin to matter, and I am not sure if that is the right thing to do, at least in all cases. Or could a rule like that be enacted by law?

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, andunder such Regulations as the Congress shall make."

Seems like all it would require is a law.; 4/8/16, 10:47 PM