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".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.
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.
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.
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